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Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov

ESTTA Tracking number: ESTTA953768

Filing date: 02/12/2019

IN THE UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD

Proceeding 91233311

Party PlaintiffGilead Sciences, Inc.

CorrespondenceAddress

LISA GREENWALD-SWIREFISH & RICHARDSON PCPO BOX 1022MINNEAPOLIS, MN 55440-1022UNITED [email protected], [email protected]

Submission Motion to Compel Discovery or Disclosure

Filer's Name Jon Jekel

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

Signature /Jon Jekel/

Date 02/12/2019

Attachments Motion to Compel and Test Sufficiency of RFAs.pdf(5424628 bytes )

http://estta.uspto.gov

Opposition No. 91233311 1 MOTION TO COMPEL



In the matter of Application Nos. 87/048,887 and 87/048,941 Filed on May 24, 2016 For the Marks GILEAD CAPITAL and GILEAD CAPITAL LEADERSHIP INVESTING Published in the Official Gazette on November 8, 2016

Gilead Sciences Inc.,

Opposer,

v.

Gilead Capital LP,

Applicant.

Opposition No. 91233311 (Parent)

Opposition No. 91233327

OPPOSER’S MOTION TO COMPEL DISCOVERY AND TEST THE SUFFICIENCY

OF APPLICANT’S RESPONSES TO REQUESTS FOR ADMISSIONS

Pursuant to 37 C.F.R. § 2.120(e) and the Federal Rules of Civil Procedure (“FRCP”), Gilead

Sciences, Inc. (“Opposer” or “Gilead”) respectfully seeks an Order compelling Gilead Capital LP

(“Applicant” or “GCL”) to: (1) respond fully to discovery requests; and (2) designate knowledgeable

witnesses to testify to each of Gilead’s 30(b)(6) deposition topics. For ease of reference, attached as

Exhibit 1 is a chart summarizing the disputed issues and corresponding requested relief set out in the

Argument sections of this Motion (3.B.–3.F.).

1. FACTUAL BACKGROUND

GCL is an investment firm in New York City that was established in 2016. See 14 TTABVUE

3. In practice, it claims to be an activist investor that “works productively with management teams,

boards of directors, and other stakeholders” to “enhanc[e] governance, strengthen[] management, and

improv[e] strategy and execution.” 17 TTABVUE 2-3. This Opposition concerns GCL’s applications

to register the marks GILEAD CAPITAL and GILEAD CAPITAL LEADERSHIP INVESTING [&

design] for Class 36 investment services (the “GILEAD CAPITAL Marks”).


On February 14, 2018, Gilead served its first sets of interrogatories, document requests

(“RFPs”), and requests for admissions (“RFAs”) for this matter. See Exhibit 3 (RFAs); Exhibit 4

(Interrogatories); Exhibit 5 (RFPs). Gilead served a second set of discovery requests on May 71, along

with 30(b)(1) and 30(b)(6) deposition notices. See Exhibit 6 (RFAs, Set 2); Exhibit 7 (Interrogatories,

Set 2); Exhibit 8 (RFPs, Set 2); Exhibit 9 (30(b)(6) Notice).2 GCL served responses to the first and

second sets of written discovery on March 14 and June 7, respectively. See Exhibit 10 (Responses to

RFAs, Set 1); Exhibit 11 (Responses to Interrogatories, Set 1); Exhibit 12 (Responses to RFPs, Set 1);

Exhibit 13 (Responses to RFAs, Set 2); Exhibit 14 (Responses to Interrogatories, Set 2); Exhibit 15

(Responses to RFPs, Set 2). GCL served written objections to Gilead’s 30(b)(6) deposition notice on

June 26. See Exhibit 16. The Parties exchanged deficiency correspondence on March 28, May 14, May

23, September 13, and September 26. See Exhibits 17–21. Additionally, the Parties met and conferred

via telephone on March 30 in an effort to resolve these disputes. Exhibit 2 at ¶ 8 (Jekel Declaration).

While Gilead was preparing this motion to compel, the Board suspended the proceeding on

October 15 pending the disposition of Gilead’s Motion for Leave to Amend the Notice of Opposition.

By order dated January 31, 2019, the Board granted the Motion to Amend and issued a new scheduling

order for proceedings to resume.

2. MATTERS IN DISPUTE

GCL’s objections and responses are grossly deficient and raise improper objections, including:

Objections to Common Terminology including the terms “related,” “Applicant’s Services,” “customer,” “descriptive,” “generic,” “facts,” and “circumstances.” But Gilead

used the exact same definition for “related” as GCL, and “Applicant’s Services” were

defined as “the services identified in Application Serial Nos. 87/048,887 and 87/048,941.”

See Exhibit 5 at p. 5. In short, GCL consistently avoids reasonable interpretations of

common words and defined terms to obstruct and delay discovery.

1 Unless otherwise noted, all dates refer to calendar year 2018. 2 At this time, Gilead will only address the 30(b)(6) Notice, as the Parties have come to an understanding regarding any depositions that may occur pursuant to FRCP 30(b)(1).


Improper Compound Objections to interrogatories and requests for admissions, such as

RFA No. 4: “Admit that the GILEAD portion of Applicant’s Marks is identical to

Opposer’s GILEAD trademark.” Exhibit 10 at p. 7 (denying RFA No. 4).

Objections to Deposition Topics as Duplicative of Interrogatories, including Topic Nos.

1, 3, 6, 10-11, 15, 21, 23-24. Exhibit 16.

GCL’s assertion of unmeritorious objections and its refusal to produce relevant information

have frustrated and delayed the discovery process, hindering Gilead’s ability to prosecute this case. As

discussed below, GCL has failed or refused to produce documents, information or competent

witnesses on the following substantive topics:

1. The selection and adoption of the GILEAD CAPITAL Marks;

2. GCL’s use in commerce of the GILEAD CAPITAL Marks;

3. GCL’s legal authority to provide the Class 36 services identified for the GILEAD CAPITAL Marks; and

4. GCL’s investments and its involvement with the investment community.

See e.g., Exhibit 11 at Interrogatory Nos. 4, 6–10, 12–13, 15–16, 19–20; Exhibit 12 at RFP Nos. 1, 3,

5, 7–11, 14, 16, 19–21, 26–27; Exhibit 14 at Interrogatory Nos. 21, 25–26, 30–31; Exhibit 15 at RFP

Nos. 32, 35, 43; Exhibit 16 at 30(b)(6) Topic Nos. 7–8, 13, 17, 20. GCL’s responses to the RFAs are

similarly ambiguous, incomplete, and frequently inconsistent with its responses to other discovery, its

allegations in the Opposition, and public records. See e.g., Exhibit 10 at RFA Nos. 1–6, 9, 11, 19–25;

Exhibit 13 at RFA Nos. 32, 36–37. Gilead raised these issues in writing and telephonically via meet-

and-confers with GCL on multiple occasions, but GCL continues to withhold documents and

information; characterizing issues such as priority as a “red herring.” See e.g., Exhibit 2 at ¶ 8 (Jekel

Declaration, referencing a meet-and-confer call on March 30); Exhibit 17 at pp. 6-7; 8-10 (Gilead’s

March 28 deficiency notice); Exhibit 18 (Gilead’s May 14 deficiency notice); Exhibit 20 at pp. 1-2, 5-

8 (Gilead’s September 13 deficiency notice); Exhibit 21 at p. 2 (GCL’s September 26 correspondence).

Therefore, Gilead respectfully requests an Order compelling GCL to correct these deficiencies.


3. ARGUMENT

Legal Standard

Under FRCP 26(b), parties are entitled to discovery on matters that are relevant to the claims

or defenses in the Opposition. The Legislative Committee Notes provide three examples of relevant

matters: “other incidents of the same type, or involving the same product”; “information about

organizational arrangements or filing systems”; and “information that could be used to impeach a likely

witness.” See Committee Notes on Rules—2015 Amendment.

Interrogatories must be responded to “separately and fully,” and objections must be “stated with

specificity.” FRCP 33(b). If the responding party is an entity, the agent responding on its behalf must

furnish information “available to the party.” FRCP 33(b)(1)(B). Responses to document requests must

respond to each item in the request, and indicate whether any responsive materials are being withheld

on the basis of an objection. FRCP 34(b)(2)(C)–(D). Requests for admissions must either be “admitted”

or “the answer must specifically deny it or state in detail why the answering party cannot truthfully admit

or deny it,” and any denials “must fairly respond to the substance of the matter.” FRCP 36(a)(4). Finally,

an entity in receipt of a deposition notice under FRCP 30(b)(6) must designate appropriate witnesses to

testify regarding any relevant matters described in the deposition notice with reasonable particularity.

Finally, Parties are expected to cooperate during discovery. Panda Travel, Inc. v. Resort Option

Enters., 94 U.S.P.Q.2d 1789, 1791 (TTAB 2009). “Each party has a duty to make a good faith effort

to satisfy the reasonable and appropriate discovery needs of its adversary.” Id. citing TBMP § 408.01

(describing the “duty to cooperate”). Further, by signing the responses to discovery requests, a party

certifies that, to the best of their knowledge, information, and belief, formed after reasonable inquiry

the responses were complete and correct as of the time they were made. FRCP 26(g)(1).


Information regarding the selection and adoption of the GILEAD CAPITAL

Marks is relevant to the claims and defenses in the Opposition.3

Gilead propounded discovery requests and 30(b)(6) deposition topics regarding the selection

and adoption of the GILEAD CAPITAL Marks, including any clearance analyses or other investigations

GCL performed. See Exhibit 5 at RFP Nos. 3; Exhibit 9 at Topic No. 5. These are standard discovery

topics in virtually every inter partes proceeding since they are relevant to show whether GCL was aware

of Gilead’s senior rights in the GILEAD mark when it adopted the GILEAD CAPITAL Marks. The

Board has repeatedly held that an applicant’s intent in selecting and adopting a subject mark is relevant

to the likelihood of confusion and false association analyses. See, L'Oreal S.A. v. Marcon, 102 U.S.P.Q.2d

1434, 1441 (TTAB 2012); Association Pour La Defense Et La Promotion De L'Oeuvre De Marc Chagall Dite

Comite Marc Chagall v. Bondarchuk, 82 U.S.P.Q.2d 1838, 1843 (TTAB 2007) (evidence of intent to create

false association is “highly persuasive”); TBMP § 414 (“Information concerning a party’s selection and

adoption of its involved mark is generally discoverable [particularly of a defendant].”).

Despite the relevance of these subjects, GCL has refused to produce documents, information,

or competent witnesses. Specifically, 30(b)(6) Topic No. 5 requests a witness to testify regarding “any

clearance analyses or other evaluations that were performed prior to adopting the GILEAD

CAPITAL name and trademark.” Exhibit 16 at p. 8.

Response and Objections to Topic No. 5

Applicant objects to Topic No. 5 as not relevant to the claims or defenses because it

seeks information about the adoption of the GILEAD CAPITAL name and trademark,

rather than Applicant’s use of the mark. Applicant objects to Topic No. 5 because it does

not describe with reasonable particularity the matters for examination, including, but not only,

because the phrase “other evaluations” is undefined and not circumscribed. Applicant

objects to the time period for Topic No. 5 to the extent it calls for testimony for any

time prior to Applicant’s formation on January 12, 2016. Applicant will not provide

30(b)(6) testimony for any time prior to Applicant’s formation. To the extent the witness provides testimony for any time prior to Applicant’s formation, such testimony will be in the

witness’ personal capacity, and not as a 30(b)(6) witness. Applicant further objects to Topic 3 For a summary of the requests and topics at issue, along with the requested relief, see Exhibit 1 at p. 1.


No. 5 because it calls for information protected by the attorney-client privilege, work product

immunity, or any other privilege or immunity from disclosure. Subject to and without waiver

of the foregoing General and Specific Objections, Applicant will produce a witness to

testify regarding any non-privileged information that falls within Topic No. 5.

Id. at pp. 8-9 (emphasis added). GCL only offers to produce a witness subject to its objections, including

the objections with respect to relevance. Similarly, in response to RFP No. 3, GCL offered to produce

documents regarding the clearance analyses it performed, subject to various objections. Exhibit 12 at

p. 9. To date, GCL has not produced any clearance reports, nor has it indicated that any are coming.

See Exhibit 2 at ¶ 14 (the Jekel Declaration). As Gilead pointed out in its deficiency notices, this is

contrary to TMBP § 414, which states: “Search reports are discoverable, but the comments or opinions

of attorneys relating thereto are privileged and not discoverable.” See also, Axiohm S.A. v. Axiom Tech.,

Inc., 2000 TTAB LEXIS 802 (TTAB 2000) (“Although the comments or opinions of attorneys relating

to search reports are privileged and not discoverable …, search reports themselves are discoverable”).

GCL has improperly designated search reports as privileged on its privilege log and has not produced

them. It should be compelled to do so now.

In addition, this is one of many instances where GCL arbitrarily limits the information it is willing

to produce to a fourteen-month window from January 12, 2016 (GCL’s formation date) to March 8,

2017 (the Opposition filing date). See also, Exhibit 10 at pp. 3–4 (General Objection No. 10 to GCL’s

RFA Responses, Set 1); Exhibit 11 at pp. 3–4 (General Objection No. 11 to GCL’s Interrogatory

Responses, Set 1); Exhibit 12 at pp. 6–7 (General Objection No. 25 to GCL’s RFP Responses, Set 1);

Exhibit 16 at p. 6 (General Objection No. 20 to GCL’s 30(b)(6) Objections). Yet, evidence in the record

clearly shows that GCL’s predecessor, or the unincorporated association that would become GCL,

adopted the GILEAD CAPITAL trademark before January 2016. Indeed, the specimens submitted for

both applications, attached as Exhibit 22, state: “Firm Inception: 2015.” Further, GCL’s general

partner—Gilead Capital GP LLC—was formed in April 2014. See Exhibit 23 (the Certificate of


Formation for Gilead Capital LLC, which is now Gilead Capital GP LLC). GCL cannot hide behind its

corporate formation date to avoid disclosure of relevant, non-privileged information.

GCL’s March 2017 cut-off date is also unjustified. Evidence arising up to the time of trial is

relevant and admissible in likelihood of confusion matters. See e.g., Estrada v. Telefonos De Mex., 447 F.

App’x 197 (Fed. Cir. 2011). By its very name, the “likelihood of confusion” analysis is an ongoing,

forward-looking one. Refusing to provide evidence outside of GCL’s artificially narrow “Relevant

Time Period” results in the improper withholding of relevant evidence on the selection, adoption, and

commercial use of the GILEAD CAPITAL marks. This should not be allowed.

Gilead requests an Order compelling GCL to produce any search reports it obtained for the

GILEAD CAPITAL Marks (redacting work product as needed), along with any non-privileged

information regarding the selection or clearance of the GILEAD CAPITAL Marks, per RFP No. 3.

Gilead also asks the Board to compel GCL to give unqualified testimony on these issues (subject to

privilege limitations), per 30(b)(6) Topic No. 5. See Exhibit 1 (Summary of Requested Relief) at p. 1.

Information regarding GCL’s use of the GILEAD CAPITAL Marks in

commerce is relevant to the issue of priority.4

Gilead propounded discovery requests and identified topics for GCL’s 30(b)(6) deposition

regarding the use in commerce of the GILEAD CAPITAL Marks, including GCL’s first use. See e.g.,

Exhibit 4 at Interrogatory Nos. 15–16; Exhibit 5 at RFP Nos. 7, 10–11; Exhibit 9 at Topic Nos. 7–

8. This information is directly relevant to the issue of priority, which underlies Gilead’s likelihood of

confusion and false association claims, and which GCL specifically raised as an affirmative defense.

15 TTABVUE p. 4 (“Applicant was the first to use the GILEAD CAPITAL mark in commerce.”).

TBMP § 414 states: “Information concerning a party’s first use of its involved mark is discoverable.”

See also, Double J of Broward Inc. v. Skalony Sportswear GmbH, 21 USPQ2d 1609, 1613 (TTAB 1991) (use

4 For a summary of the requests and topics at issue, along with the requested relief, see Exhibit 1 at pp. 1–4.


or intended use of applicant’s mark in commerce is relevant). Yet, GCL has not produced any

documents or information to corroborate the claimed first use date for GCL’s services. For instance,

Interrogatory No. 15 requested the date when GCL first rendered each of its claimed services to a

consumer. Exhibit 4 at p. 6. GCL responded as follows:

RESPONSE & OBJECTIONS TO INTERROGATORY NO. 15

Applicant objects to this Interrogatory as vague and ambiguous with respect to the meaning

of “rendered” and “consumer” because, among other reasons, it is unclear whether it is intended to refer to investors, including retail investors. Applicant objects to this Interrogatory

as compound. The services cited in Applicant’s Services incorporate numerous activities, including but not limited to, researching potential investments, financial modeling, asset

allocation strategies, trading, portfolio management, and implementing the

infrastructure and relationships needed for each of the foregoing. Applicant also objects

to this Interrogatory because it is not limited in geographic scope. The Trademark Trial and

Appeal Board is empowered to determine only the right to register a trademark in the United

States. See TBMP §102.01. Applicant will not provide information related to non-U.S. persons

or non-U.S. activities. Subject to, and without waiver of, the foregoing General and Specific

Objections, Applicant responds as follows:

Applicant is unable to respond to this Interrogatory as posed.

Exhibit 11 at pp. 16-17 (emphasis added).5 In the March 28 and May 14 deficiency notices, Gilead

specifically identified the above response and again, requested that GCL provide this information. See

Exhibits 17–18. Gilead also repeated this request during the March 30 meet-and-confer. See Exhibit

2 at ¶ 11 (Jekel Declaration). When GCL responded on May 23, it added an objection to its response:

“the Interrogatory is seeking information that is not relevant to a claim or defense.” See Exhibit 19 at

p. 2. And, although GCL agreed to produce documents “sufficient to evidence the date of first use in

commerce of Applicant’s Marks for each of Applicant’s Services” in response to RFP No. 7, no such

documents have been produced to date. Exhibit 12 at p. 12.

Similarly, in response to Interrogatory No. 16, GCL refused to identify the first customer(s)

5 Notably, the emphasized “activities” that allegedly make this interrogatory compound are not in the identification of GCL’s services and are not “services” provided to others.


for its services, even though TBMP § 414 states “the name of the first customer for a party’s involved

goods or services sold under its involved mark … may be discoverable under protective order,” as

Gilead noted in its deficiency letters and during meet and confer. See Exhibit 11 at pp. 17–18. Here, a

protective order is in place, but GCL continues to withhold this information. Indeed, doubling down

on its position, GCL refused to produce a witness to testify regarding “the date(s) on which Applicant

first provided each of Applicant’s Services in U.S. commerce” and “the manner in which Applicant

has provided each of Applicant’s Services in U.S. commerce.” See Exhibit 16 at Topic Nos. 7–8.

Moreover, GCL has refused to produce documents regarding its ongoing commercial activities

with the subject trademarks. See Exhibit 12 at RFP Nos. 10–11. At a minimum, GCL’s claimed first

use date is relevant to the issue of priority, which has a central role in Gilead’s claims and GCL’s

defenses. GCL should have identified the date when it first provided its claimed services in U.S.

commerce, as well as information regarding the commercial activities it continues to undertake with

these brands. The blanket refusal to produce any documents, information, or witnesses on these issues

is contrary to GCL’s discovery obligations and it demonstrates a lack of ordinary good faith.

Therefore, Gilead asks the Board to compel GCL to produce complete responses, responsive

documents, and competent witnesses to Interrogatory Nos. 15–16, RFP Nos. 7, 10–11, and 30(b)(6)

Topic Nos. 7–8. See Exhibit 1 (Summary of Requested Relief) at pp. 1–4.

Whether GCL had legal authority to provide its services on the claimed first use

date is relevant to priority, and it may provide other grounds for Opposition.6

Gilead issued discovery requests and 30(b)(6) topics regarding the circumstances under which

GCL became legally authorized to provide its services in U.S. commerce. See Exhibit 7 at Interrogatory

No. 21; Exhibit 8 at RFP No. 35; Exhibit 9 at Topic No. 13. Whether GCL had legal authority to

provide its services on the claimed first use date is relevant to priority, and it may provide additional



grounds for the opposition under Nationstar Mortg. LLC v. Ahmad, 112 USPQ2d 1361 (TTAB 2014)

(finding fraud where evidence showed that the applicant did not satisfy regulatory requirements prior

to his claimed first use date). If GCL did not have legal authority to provide its services in January

2016, it would defeat GCL’s priority claim, as it is well settled that trademark rights cannot be acquired

through unlawful use in commerce. In re Stellar International, 159 USPQ 48 (TTAB 1968).

Despite this, GCL has refused to produce documents, information, or witnesses regarding its

legal authority to provide the services identified for the GILEAD CAPITAL Marks. For example, in

response to Interrogatory No. 21, GCL provided the following inapposite objections:

INTERROGATORY NO. 21

Identify the date(s) on which Applicant was registered with, or otherwise received any

regulatory permits or approvals to do business from, any state or federal agencies or other

regulatory authorities.


Applicant objects to the definition of “Identify” as unduly burdensome and imposing upon

Applicant requirements that extend beyond the Trademark Rules of Practice and the Federal

Rules of Civil Procedure. Applicant objects to this Interrogatory to the extent the information

is publicly available or equally available to Opposer. Applicant objects to this Interrogatory

as compound. Applicant objects to the definition of “date” as vague, ambiguous, lacking in specificity, unduly burdensome, and inscrutable, and purporting to impose upon

Applicant requirements beyond the Trademark Rules of Practice and Federal Rules of Civil

Procedure, insofar as it requires Applicant to closely approximate a day, month, and year by

means of relationship to other events, locations, or matters. Applicant further objects to this

Interrogatory as seeking information that is not relevant to the claims or defenses and not

reasonably calculated to lead to the discovery of admissible evidence because Applicant’s regulatory compliance is not germane to any of the DuPont factors and Opposer has not

asserted a statutory basis for challenging Applicant’s ability or authority to render Applicant’s Services. Opposer cannot expand its claims through discovery requests.

See Exhibit 14 at pp. 4-5 (emphasis added). GCL asserted nearly identical objections to RFP No. 35 and

30(b)(6) Topic No. 13. See Exhibit 15 at pp. 8–9 (“All Documents that evidence the steps Applicant

has taken to comply with regulatory requirements necessary for Applicant to render Applicant’s

Services.”); Exhibit 16 at pp. 12-13 (“The date(s) on which Applicant obtained any licenses,


certifications, registrations, or other authorizations related to Applicant’s Services”). In its March 28,

May 14, and September 13 deficiency notices, Gilead explained why this information was relevant to

at least the issue of priority. See Exhibit 17 at p. 10; Exhibit 18 at p. 2; Exhibit 20 at p. 6. Yet, GCL’s

September 26 letter stated that it “do not intend to amend [its] responses to requests for specific dates

when Applicant rendered services or its legal authority to do business.” Exhibit 21 at p. 6.

Given GCL’s refusal to provide discovery in good faith, Gilead went to the trouble (and

expense) of acquiring relevant public records that GCL must have, and yet, withheld without a legal

basis, such as the “Application for Authority” that GCL filed in order to conduct business as a foreign

limited partnership in New York. See Exhibit 24. Yet, because GCL has refused to provide clear

responses to discovery requests on these issues, Gilead cannot tell whether other responsive

documents are still being withheld. The documents and information needed to show that GCL had

legal authority to conduct its business cannot be so voluminous or difficult to produce that it would

be unduly burdensome for GCL. Therefore, Gilead requests an Order compelling GCL to produce

complete, candid responses to the discovery requests above, and a competent witness to testify on

these issues at the 30(b)(6) deposition. See Exhibit 1 (Summary of Requested Relief) at pp. 4–5.

GCL’s investments and involvement with the investment community is relevant

to Gilead’s likelihood of confusion and false association claims.7

A central issue in this Opposition is the fact that the Parties frequently interact with the same

types of companies as a result of their connections to and involvement with the investment

community. As alleged in the Opposition, pharmaceutical companies (including Gilead) frequently

invest in new companies and innovative technologies. 14 TTABVUE 1–2, 5–6. Investments are so

common in this space that many pharmaceutical companies maintain a separate investment arm, such

as “Amgen Ventures” or “Novartis Option Fund,” with the naming convention [House Brand]



[Generic Investment Term]. Id. As a publicly traded company with millions of shares traded every day,

Gilead also has regular contact with the investment community through earnings calls, financial

conferences, and other meetings. Id. Meanwhile, GCL calls itself an activist investor that is involved

in the “governance,” “management,” “strategy” and “execution” of the companies in which it invests.

17 TTABVUE 2-3. Further, the limited discovery GCL has produced indicates that the Parties

frequently do business with at least one investment firm in common.

Accordingly, Gilead issued discovery requests regarding the investments GCL has made, the

role or involvement GCL has in the companies in which it invests, and the conferences GCL attends.

See Exhibit 4 at Interrogatory No. 10; Exhibit 5 at RFP Nos. 19–20; Exhibit 7 at Interrogatory No.

30; Exhibit 9 at 30(b)(6) Topic Nos. 17, 20. This information is directly relevant to a key element of

the likelihood of confusion analysis—whether the same persons or entities are likely to encounter

both parties’ marks. Quadrex Corp. v. Inficon Lyeboldy- Heraeus, Inc., 228 USPQ 300, 302 (TTAB 1985) (“It

is only necessary that we find a relationship between these goods such that they would be likely to be

encountered by the same persons under circumstances that could … give rise to a mistaken belief that

they originate from, or are in some way associated with the same … producer.”). This information is

also relevant to the question of whether GCL’s services are within Gilead’s natural zone of expansion,

given Gilead’s involvement in the investment community and GCL’s status as an activist investor.

Yet, GCL refuses to provide documents, information, or competent witnesses on these issues,

asserting the same basic objections to Interrogatory No. 10, RFP No. 20, and 30(b)(6) Topic No. 17:


Identify each Person in which Applicant has invested in the course of rendering Applicant’s Services, including the date and dollar amount of the investment.


Applicant objects to this Interrogatory on the grounds that it is overbroad and unduly

burdensome to require the production of “each” Person, which Opposer instructs as meaning “all” and “any,” given the limited issues in these proceedings. Applicant further objects to this


Interrogatory because it is not limited in geographic scope or time. The Trademark Trial

and Appeal Board is empowered to determine only the right to register a trademark in the

United States. See TBMP §102.01. Applicant will not provide information related to non-U.S.

persons or non-U.S. activities. Furthermore, Applicant will not provide information outside

of the Relevant Time Period. Applicant objects to this Interrogatory to the extent

information is publicly available or equally available to Opposer. Applicant objects to the

Interrogatory as vague, ambiguous, overbroad, unduly burdensome, and not reasonably

calculated to lead to the discovery of admissible evidence because Applicant’s investment decisions, which are confidential, as opposed to its investment advisory services, are not

relevant, material, or necessary to the prosecution or defense of these proceedings.

See Exhibit 11 at p. 13 (emphasis added); Exhibit 12 at p. 21-22 (“Any Documents Related to each

investment Applicant has made since its formation.”); Exhibit 16 at p. 14 (“The companies in which

Applicant has invested since its formation.”). GCL provided the same objections and refusal to respond

to requests regarding the types of companies in which GCL invests, including Interrogatory No. 30—

“Identify the industry for each company in which Applicant has invested.” See Exhibit 14 at p. 11.

GCL provided similar objections to discovery requests and deposition topics regarding the

conferences it attends, and offered to produce documents, information, and competent witnesses

regarding “capital introduction” conferences, but nothing else. This includes RFP No. 19—“Any

Documents Related to any Conferences Applicant has attended.” See Exhibit 12 at pp. 20–21.

As stated above, Gilead has regular contact with investors and investment professionals, given

that it is a public company. It routinely invests in new companies and innovative technologies, and it

operates in an industry that is known for making regular investments. As noted above, many of its

competitors have separate investment entities, e.g., “Amgen Ventures” or “Novartis Option Fund.”

14 TTABVUE 1–2, 5–6. It is also increasingly common for large venture funds to partner with

pharmaceutical companies. Further, Gilead attends several financial conferences each year, including

one that is hosted by the investment bank GCL uses for brokerage services. If the parties are attending

the same conferences, targeting the same companies for investment, and doing business with the same

companies, it is relevant to DuPont Factor Nos. 2, 3, 4, 10, and 13, and the fourth false association


element, which requires Gilead to show that consumers could draw a connection between GCL’s

services and Gilead.

Gilead attempted to meet and confer with GCL on these issues, and offered to narrow the

scope of its requests to documents “sufficient to identify” relevant persons or information. Exhibit

18 at p. 1. Despite these good faith efforts, GCL continues to refuse to produce the requested, relevant

information. Therefore, Gilead respectfully requests an Order compelling GCL to provide complete

responses to RFP Nos. 19–20 and Interrogatory Nos. 10, 30, and to designate competent witnesses

on 30(b)(6) Topic Nos. 17, 20. See Exhibit 1 (Summary of Requested Relief) at pp. 5–7.

Gilead requests that the Board test the sufficiency of GCL’s responses to Requests for Admissions, which are inconsistent and misleading.8

Requests for admissions must either be “admitted” or “the answer must specifically deny it or

state in detail why the answering party cannot truthfully admit or deny it.” FRCP 36(a)(4). A denial “must

fairly respond to the substance of the matter.” Id. Further, respondents are expected to exercise reason

and common sense when responding to discovery requests. See e.g., Marchand v. Mercy Med. Ctr., 22 F.3d

933, 938 (9th Cir. 1994) (improper to object that a request for admission is “ambiguous” unless it is

so ambiguous that respondent cannot provide an intelligent reply in good faith).

Despite these requirements, GCL’s responses to requests for admissions are inconsistent,

evasive, and/or misleading. See e.g., Exhibit 10 at RFA Nos. 1–6, 9, 11, 19–25; Exhibit 13 at RFA

Nos. 36–37. GCL frequently provides a long list of objections, often distorting the plain meaning of

words, followed by a statement that the request is “incapable of a response as posed.” GCL goes on

to deny the request, even though the denials are often contradicted by: (1) GCL’s responses to other

discovery requests; (2) information in the record; and/or (3) publicly available information.



For instance, GCL disclaimed CAPITAL in both GILEAD CAPITAL Marks after receiving an

Office Action in September 2016, finding CAPITAL to be merely descriptive. Thus, RFA No. 3 seeks

an admission that CAPITAL is non-distinctive:

REQUEST FOR ADMISSION NO. 3

Admit that CAPITAL is a generic or merely descriptive term in the context of Applicant’s

Services.

RESPONSE TO REQUEST FOR ADMISSION NO. 3

Applicant objects to this Request as seeking a legal conclusion. Applicant also objects to this

Request as compound. Pursuant to Fed. R. Civ. P. 36, each matter must be separately stated.

Applicant further objects to this Request as vague, ambiguous, and incomprehensible

because a thing or word cannot be “generic” or “descriptive” in isolation, and the Request does not indicate a reference point (i.e., descriptive of what?). The phrase “in the context of Applicant’s Services” is similarly vague and ambiguous and does not serve as a

comprehensible reference point. As a result, this Request is incapable of a response as posed.

Applicant denies Request No. 3.

Exhibit 10 at pp. 6-7 (emphasis added). In the context of a trademark Opposition, the terms

“descriptive” or “generic” are not “vague, ambiguous, and incomprehensible.” Id. As for “Applicant’s

Services,” Gilead defined them as “the services identified in Application Serial Nos. 87048887 and

87048941;” i.e., the services GCL itself identified for the GILEAD CAPITAL Marks. Exhibit 3 at p. 2.

Further, as discussed in Section 2.B., Gilead propounded discovery requests regarding GCL’s

intent in adopting the GILEAD CAPITAL Marks, including RFAs asking GCL to admit that it was

aware of Gilead before it adopted of the name GILEAD CAPITAL. See Exhibit 3 at p. 2. For example:


Admit that Applicant was aware of Opposer’s GILEAD trademark prior to adopting Applicant’s Marks.


Applicant objects to this Request as vague, ambiguous, and incomprehensible because

“Opposer’s GILEAD trademark” is not defined, and Opposer’s Notices of Opposition specifically identify three registered trademarks that are the basis for the Oppositions (U.S.

Registration No. 3604505, U.S. Registration No. 4279898, and U.S. Registration No. 3251595).


It is unclear to which trademark this Request refers. Applicant also objects to this Request as

compound because Applicant has two trademarks. Pursuant to Fed. R. Civ. P. 36, each matter

must be separately stated. As a result, this Request is incapable of a response as posed.

Applicant denies Request for Admission No. 1.

Exhibit 10 at pp. 5–6. This is inconsistent with Interrogatory No. 12, where GCL could not identify when

it became aware of Gilead because it “was founded by professional investors who were and are aware of

the existence of numerous publicly-traded companies, including Opposer.” Exhibit 11 at pp. 14-15.9

Likewise, trademark clearance reports are relevant and discoverable in likelihood of confusion

matters. See TBMP § 414. GCL has not produced any such reports. See Exhibit 2 at ¶ 17 (Jekel

Declaration). Yet, it responded as follows to two RFAs asking whether it had performed a trademark

clearance search or analysis for the GILEAD CAPITAL Marks:


Admit that a trademark clearance search and/or analysis was performed by or for Applicant

on the GILEAD CAPITAL trademark prior to Applicant’s adoption of such a mark.


Applicant objects to this Request as vague and ambiguous as to the term “analysis.” Applicant objects to this Request as compound (“and/or,” “by or for”). Pursuant to Fed. R. Civ. P. 36, each matter must be separately stated. As a result, this Request is incapable of a response as

posed. Applicant also objects to this Request to the extent it seeks information that is

protected by attorney-client privilege, work product immunity, or any other privilege or

immunity from disclosure. Applicant further objects to this Request as seeking information

that is not relevant to the claims or defenses in these proceedings.




on the GILEAD CAPITAL trademark subsequent to Applicant’s adoption of such mark.


[Gilead omits this response, which is identical to the response to RFA No. 36.]

9 GCL provided the same response to RFA No. 4—“Admit that the GILEAD portion of Applicant’s Marks is identical to Opposer’s GILEAD trademark.” Exhibit 10 at p. 7. No comment is necessary.


Exhibit 13 at pp. 9-10. However, GCL’s interrogatory responses and Privilege Log suggest that a

clearance search was performed. See Exhibit 11 at p. 6 (objecting to Interrogatory No. 2 because it:

“purports to require information that is not in Applicant’s possession, custody, or control, such as the

identities of persons at government agencies who may have information regarding investigations or

clearance analyses conducted on the marks” [emphasis added]); Exhibit 25 (the Privilege Log,

which refers to a “trademark clearance search”). Whether a clearance analysis was performed is

relevant to GCL’s intent in adopting the GILEAD CAPITAL Marks. The continued refusal to provide

a cogent response to these RFAs is improper, and it impedes Gilead’s ability to prosecute this case.

As discussed in Sections 2.C. and 2.E., Gilead also propounded discovery requests regarding

GCL’s first use of the GILEAD CAPITAL Marks, including RFP No. 16, which requested documents

“sufficient to describe the business Applicant conducts in connection with any of Applicant’s

Services.” Exhibit 5 at p. 10. GCL has provided no documents showing use in commerce in

connection with most of its claimed services. Exhibit 2 at ¶ 17 (the Jekel Declaration). Yet, it denied

the RFAs that asked about the specific services identified for the GILEAD CAPITAL Marks:

RFA No. 22: “Admit that Applicant does not trade commodities futures for others.”

RFA No. 23: “Admit that Applicant does not trade debt instruments for others.”

RFA No. 24: “Admit that Applicant does not operate or manage a commodity pool.”

See Exhibit 10 at pp. 15–16; Exhibit 2 at ¶ 17 (Jekel Declaration, attesting that GCL has not produced

responsive documents on this issue). Either GCL provided these services or it did not. Its continued

refusal to respond to these straightforward requests should not be allowed.

Further, as noted in Section 2.D., Gilead issued discovery requests to confirm that GCL had

legal authority to provide its services as of the claimed first use date, including RFA No. 20:



Admit that Gilead Capital LP was registered as an entity authorized to do business in the State

of New York no earlier than February 5, 2016.


Applicant objects to this Request as seeking a legal conclusion. Applicant also objects to this

Request as vague, ambiguous, and incomprehensible because the State of New York does not

register foreign limited partnerships.


Exhibit 10 at p. 15. But the State of New York does register foreign limited partnerships. In fact,

Exhibit 24 is a copy of the “Application for Authority” to conduct business as a foreign limited

partnership that GCL filed on February 5, 2016, which Gilead obtained from the State of New York.

It cites Revised Limited Partnership Act § 121-902—“Before doing business in this state, a foreign

limited partnership shall apply for authority to do business in this state.” Id. (emphasis added).

Finally, Gilead propounded RFAs asking GCL to admit that instances of actual confusion had

occurred, including RFA No. 25.


Admit that one or more third parties have asked Applicant whether there was any connection

or affiliation between Applicant and Opposer.


Applicant objects to this Request as vague and ambiguous with respect to the meanings of

“connection” and “affiliation.” Applicant also objects to this Request as compound. Pursuant

to Fed. R. Civ. P. 36, each matter must be separately stated. As a result, this Request is

incapable of a response as posed. Applicant also objects to this Request because it is not

limited in geographic scope of time.

Applicant denies Request for Admission No. 25.

Exhibit 10 at pp. 16–17. After Gilead issued its second set of interrogatories, GCL identified two people who

made that exact inquiry—Manako Ihaya and Jayson Ward. Exhibit 14 at Interrogatory No. 26. Even


then, however, GCL did not provide any identifying information for these individuals beyond their

names, despite the fact that Gilead specifically requested it so it could corroborate GCL’s claims.

Per FRCP 26(a)(4), GCL’s denials “must fairly respond to the substance of the matter.” When

the purpose and significance of a request are reasonably clear, it is not proper to issue a denial based

on a hyper-technical reading of the request. Holmgren v. State Farm Mut. Auto. Ins. Co., 976 F.2d 573,

580 (9th Cir. 1992) (“Epistemological doubts speak highly of (party's) philosophical sophistication,

but poorly of its respect for Rule 36(a).”). Therefore, Gilead respectfully requests an appropriate Order

compelling GCL to provide complete and accurate responses to RFA Nos. 1, 9, 19–20, 22–25, 36–

37. See Exhibit 1 (Summary of Requested Relief) at pp. 7–9. Alternatively, GCL should be precluded

from offering contradictory evidence later in time.

4. CONCLUSION

Gilead respectfully requests that the Board issue an Order compelling GCL to:

1. Provide clear, unambiguous responses to RFA Nos. 1, 9, 19–20, 22–25, and 36–37 and

Interrogatory Nos. 10, 15–16, 21, and 30;

2. Produce documents responsive to RFP Nos. 3, 7, 10–11, 19–20, and 35; and

3. Designate witnesses sufficient to testify to 30(b)(6) Topic Nos. 5, 7–8, 13, 17, and 20.

Respectfully submitted,

GILEAD SCIENCES, INC. By its Attorneys, Dated: February 12, 2019 /Robert M. O’Connell, Jr./ Lisa Greenwald Swire

Robert M. O’Connell, Jr. Fish & Richardson P.C. P.O. Box 1022 Minneapolis, MN 55440-1022 [email protected]; [email protected]


CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing OPPOSER’S MOTION TO COMPEL

DISCOVERY AND TEST THE SUFFICIENCY OF APPLICANT’S RESPONSES TO

REQUESTS FOR ADMISSIONS was served by electronic mail on counsel for Applicant on

February 12, 2019, at the following address:

Kanchana Wangkeo Leung Gilead Capital LP 157 Columbus Ave. #403 New York, NY 10023 [email protected]

/s/ Jon Jekel Jon Jekel

Gilead Sciences, Inc. v. Gilead Capital LP

Consolidated Opposition No. 91233311

Opposition No. 91233311 MOTION TO COMPEL

Supporting Exhibits

EXHIBIT 1

APPENDIX A: SUMMARY OF REQUESTED RELIEF


SECTION 3.B.: The Selection, Adoption, and Clearance of the GILEAD CAPITAL Marks

DOCUMENT REQUEST NO. 3 Any Documents Related to any Analysis Applicant conducted on Applicant's Marks.

RESPONSE & OBJECTIONS TO REQUEST NO. 3

Applicant objects to this Document Request on the grounds that it is overbroad and unduly

burdensome to require the production of "any" Documents, which Opposer instructs as meaning

"all" and "each," given the limited issues in these proceedings. Applicant also objects to the definition

of "Analysis" as vague, ambiguous, unduly burdensome, not reasonably calculated to lead to the

discovery of admissible evidence, and improperly seeking the production of documents that are

protected by attorney-client privilege, work product immunity, or any other privilege or immunity

against disclosure. Not only does the definition require Applicant to speculate as to the kinds of

activities an unidentified trademark attorney may undertake, it specifically includes legal opinions.

Subject to, and without waiver of, the foregoing General and Specific Objections, Applicant will

produce relevant, non-privileged documents responsive to this Document Request, if any.

REQUESTED RELIEF

Withdraw improper objections and produce responsive documents, specifically including search

reports (the existence of which has been admitted).

DEPOSITION TOPIC NO. 5 Any clearance analyses or other evaluations that were performed prior to adopting the GILEAD CAPITAL name and trademark.

RESPONSE AND OBJECTIONS TO DEPOSITION TOPIC NO. 5 Applicant objects to Topic No. 5 as not relevant to the claims or defenses because it seeks information about the adoption of the GILEAD CAPITAL name and trademark, rather than Applicant’s use of the mark. Applicant objects to Topic No. 5 because it does not describe with reasonable particularity the matters for examination, including, but not only, because the phrase “other evaluations” is undefined and not circumscribed. Applicant objects to the time period for Topic No. 5 to the extent it calls for testimony for any time prior to Applicant’s formation on January 12, 2016. Applicant will not provide 30(b)(6) testimony for any time prior to Applicant’s formation. To the extent the witness provides testimony for any time prior to Applicant’s formation, such testimony will be in the witness’ personal capacity, and not as a 30(b)(6) witness. Applicant further objects to Topic No. 5 because it calls for information protected by the attorney-client privilege, work product immunity, or any other privilege or immunity from disclosure. Subject to and without waiver of the foregoing General and Specific Objections, Applicant will produce a witness to testify regarding any non-privileged information that falls within Topic No. 5.

REQUESTED RELIEF Withdraw improper objections and provide a witness to testify on this Topic, unlimited as to time.

SECTION 3.C.: The Use in Commerce of the GILEAD CAPITAL Marks


State the date when Applicant first rendered each of the services recited in Applicant's Services

to a consumer.


Applicant objects to this Interrogatory as vague and ambiguous with respect to the meaning of

"rendered" and "consumer" because, among other reasons, it is unclear whether it is intended to

refer to investors, including retail investors. Applicant objects to this Interrogatory as compound.

The services cited in Applicant's Services incorporate numerous activities, including but not

limited to, researching potential investments, financial modeling, asset allocation strategies,

trading, portfolio management, and implementing the infrastructure and relationships needed for



each of the foregoing. Applicant also objects to this Interrogatory because it is not limited in

geographic scope. The Trademark Trial and Appeal Board is empowered to determine only the

right to register a trademark in the United States. See TBMP §102.01. Applicant will not provide

information related to non-U.S. persons or non-U.S. activities. Subject to, and without waiver of,

the foregoing General and Specific Objections, Applicant responds as follows: Applicant is

unable to respond to this Interrogatory as posed.

REQUESTED RELIEF

Withdraw improper objections and produce a full response.


For each date recited in response to the above Interrogatory, identify the Person to whom

Applicant's Services were rendered.


Applicant objects to this Interrogatory as vague and ambiguous with respect to the meaning of

"rendered" and whether Opposer is equating such term with use of a service mark in commerce.

Applicant objects to this Interrogatory as vague and ambiguous with respect to the term

"Applicant's Services" because it is unclear whether the Interrogatory is seeking information

regarding such services generally or services by Applicant specifically. Applicant also objects to

this Interrogatory because it is not limited in geographic scope. The Trademark Trial and Appeal

Board is empowered to determine only the right to register a trademark in the United States. See

TBMP §102.01. Applicant will not provide information related to non-U.S. persons or non-U.S.

activities. Applicant further objects to this Interrogatory because certain information regarding its

clients, including identities, are subject to confidentiality provisions and may not be disclosed

under these circumstances. Applicant further objects to this Interrogatory as duplicative of

Interrogatory No. 6 and Interrogatory No. 13. Subject to, and without waiver of, the foregoing

General and Specific Objections, Applicant responds as follows:

Applicant incorporates its responses and objections to Interrogatory No. 6. and Interrogatory No. 13.

REQUESTED RELIEF

Withdraw improper objections and produce a full response.

DOCUMENT REQUEST NO. 7 Any Documents sufficient to evidence the date of first use in commerce of Applicant's Marks for each of Applicant's Services.

RESPONSE & OBJECTIONS TO REQUEST NO. 7 Applicant objects to this Document Request on the grounds that it is overbroad and unduly burdensome to require the production of "any" Documents, which Opposer instructs as meaning "all" and "each," given the limited issues in these proceedings. Applicant objects to this Document Request because it is not limited in geographic scope. Subject to, and without waiver of, the foregoing General and Specific Objections, Applicant will produce relevant, non- privileged documents responsive to this Document Request, if any. REQUESTED RELIEF

Withdraw improper objections and produce documents without restrictions as to time and place.

REQUEST NO. 10

Any Documents Related to any Marketing Activities Applicant has undertaken or intends to

undertake for Applicant’s Services. RESPONSE & OBJECTIONS TO REQUEST NO. 10 Applicant objects to this Document Request on the grounds that it is overbroad and unduly

burdensome to require the production of “any” Documents, which Opposer instructs as meaning



“all” and “each,” given the limited issues in these proceedings. Applicant also objects to the

definition of “Marketing Activities” as vague, ambiguous, overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence, including because it calls

for “anything Applicant has done” and is not limited in geographic scope or time. Subject to, and without waiver of, the foregoing General and Specific Objections, Applicant will produce relevant,

non-privileged documents responsive to this Document Request, if any.

REQUESTED RELIEF


REQUEST NO. 11

Any Documents Related to any Communications with third parties regarding the advertising or

promotion of Applicant’s Services. RESPONSE & OBJECTIONS TO REQUEST NO. 11 Applicant objects to this Document Request on the grounds that it is overbroad and unduly burdensome to require the production of “any” Documents, which Opposer instructs as meaning “all” and “each,” given the limited issues in these proceedings. Applicant objects to this Document Request because it is not limited in geographic scope or time. Applicant also objects to the definition of “Communication” as imposing upon Applicant requirements that extend beyond the Trademark Rules of Practice and the Federal Rules of Civil Procedure as incorporated therein, including because it purports to call for the production of oral contacts and oral communications. Applicant further objects to this Document Request as vague and ambiguous as it is unclear what how “promoting” would differ from “advertising.” Subject to, and without waiver of, the foregoing General and Specific Objections, Applicant will produce relevant, non-privileged documents responsive to this Document Request, if any. REQUESTED RELIEF


TOPIC NO. 7 The date(s) on which Applicant first provided each of Applicant’s Services in U.S. commerce. RESPONSE AND OBJECTIONS TO TOPIC NO. 7 Applicant objects to Topic No. 7 as not relevant to the claims or defenses, including, but not only, because it seeks information about when services were provided, rather than the conditions under which Applicant’s Services were offered in U.S. commerce. Further, Opposer has not pleaded a challenge to the sufficiency of Gilead Capital’s trademark applications. If there is a statutory basis for Opposer to challenge the applications and Opposer intends to assert it, Opposer must amend its Opposition. Applicant also objects to the definition of “date” as unduly burdensome, inscrutable, and purporting to impose upon Applicant requirements beyond the Trademark Rules of Practice and Federal Rules of Civil Procedure, insofar as it requires Applicant to closely approximate a day, month, and year by means of relationship to other events, locations, or matters.

REQUESTED RELIEF Withdraw improper objections and designate a competent witness on this Topic.

TOPIC NO. 8 The manner in which Applicant has provided each of Applicant’s Services in U.S. commerce. RESPONSE AND OBJECTIONS TO TOPIC NO. 8 Applicant objects to Topic No. 8 as not relevant to the claims or defenses, including, but not only, because it seeks information about how Applicant’s Services have been provided, rather than the conditions under which Applicant’s Services have been offered in U.S. commerce. Applicant also objects to Topic No. 8 because it does not describe with reasonable particularity the matters for examination, including, but not only, because it is vague, ambiguous, and inscrutable what is



meant by the “manner” of providing services. REQUESTED RELIEF Withdraw improper objections and designate a competent witness on this Topic.

SECTION 3.D.: GCL’s Legal Authority to Provide its Claimed Services

INTERROGATORY NO. 21 Identify the date(s) on which Applicant was registered with, or otherwise received any regulatory

permits or approvals to do business from, any state or federal agencies or other regulatory authorities.

RESPONSE & OBJECTIONS TO INTERROGATORY NO. 21 Applicant objects to the definition of "Identify" as unduly burdensome and imposing upon Applicant

requirements that extend beyond the Trademark Rules of Practice and the Federal Rules of Civil

Procedure. Applicant objects to this Interrogatory to the extent the information is publicly available

or equally available to Opposer. Applicant objects to this Interrogatory as compound. Applicant

objects to the definition of "date" as vague, ambiguous, lacking in specificity, unduly burdensome,

and inscrutable, and purporting to impose upon Applicant requirements beyond the Trademark

Rules of Practice and Federal Rules of Civil Procedure, insofar as it requires Applicant to closely

approximate a day, month, and year by means of relationship to other events, locations, or matters.

Applicant further objects to this Interrogatory as seeking information that is not relevant to the

claims or defenses and not reasonably calculated to lead to the discovery of admissible evidence

because Applicant's regulatory compliance is not germane to any of the DuPont factors and

Opposer has not asserted a statutory basis for challenging Applicant's ability or authority to render

Applicant's Services. Opposer cannot expand its claims through discovery requests.

REQUESTED RELIEF Withdraw improper objections and provide a complete response to this interrogatory.

DOCUMENT REQUEST NO. 35 All Documents that evidence the steps Applicant has taken to comply with regulatory requirements necessary for Applicant to render Applicant's Services.

RESPONSE & OBJECTIONS TO REQUEST NO. 35 Applicant objects to this Document Request on the grounds that it is overbroad, unduly burdensome, and not proportional to the needs of the case to require the production of "all" Documents. Applicant also objects to this Document Request to the extent information is publicly available or equally available to Opposer. Applicant objects to this Document Request to the extent it calls for the production of documents that are protected by attorney-client privilege, work product immunity, or any other privilege or immunity against disclosure. Applicant further objects to this Document Request as seeking information that is not relevant to the claims or defenses and not reasonably calculated to lead to the discovery of admissible evidence because Applicant's regulatory compliance is not germane to any of the DuPont factors and Opposer has not asserted a statutory basis for challenging Applicant's ability or authority to render Applicant's Services. Opposer cannot expand its claims through discovery requests.

REQUESTED RELIEF

Withdraw improper objections and produce responsive documents.

TOPIC NO. 13 The date(s) on which Applicant obtained any licenses, certifications, registrations, or other

authorizations related to Applicant’s Services. RESPONSE AND OBJECTIONS TO TOPIC NO. 13 Applicant objects to the definition of “date” as unduly burdensome, inscrutable, and purporting to

impose upon Applicant requirements beyond the Trademark Rules of Practice and Federal Rules

of Civil Procedure, insofar as it requires Applicant to closely approximate a day, month, and year



by means of relationship to other events, locations, or matters. Applicant also objects to Topic

No. 13 because it does not describe with reasonable particularity the matters for examination,

including, but not only, because it is unclear what the scope of “related to Applicant’s Services” means in this context. Applicant objects to Topic No. 13 as not relevant, material, or necessary

to the claims or defenses. Further, Opposer has not pleaded a challenge to the sufficiency of

Gilead Capital’s trademark applications. If there is a statutory basis for Opposer to challenge the

applications and Opposer intends to assert it, Opposer must amend its Opposition.

REQUESTED RELIEF Withdraw improper objections and designate a competent witness on this Topic.

SECTION 3.E.: GCL’s Investments and Involvement with the Investment Community

INTERROGATORY NO. 10 Identify each Person in which Applicant has invested in the course of rendering Applicant's

Services, including the date and dollar amount of the investment.

RESPONSE & OBJECTIONS TO INTERROGATORY NO. 10 Applicant objects to this Interrogatory on the grounds that it is overbroad and unduly burdensome to

require the production of "each" Person, which Opposer instructs as meaning "all" and "any," given

the limited issues in these proceedings. Applicant further objects to this Interrogatory because it is

not limited in geographic scope or time. The Trademark Trial and Appeal Board is empowered to

determine only the right to register a trademark in the United States. See TBMP §102.01. Applicant

will not provide information related to non-U.S. persons or non-U.S. activities. Furthermore, Applicant

will not provide information outside of the Relevant Time Period. Applicant objects to this Interrogatory

to the extent information is publicly available or equally available to Opposer. Applicant objects to the

Interrogatory as vague, ambiguous, overbroad, unduly burdensome, and not reasonably calculated

to lead to the discovery of admissible evidence because Applicant's investment decisions, which are

confidential, as opposed to its investment advisory services, are not relevant, material, or necessary

to the prosecution or defense of these proceedings.

REQUESTED RELIEF Withdraw improper objections and produce a complete response to this interrogatory.

INTERROGATORY NO. 30 Identify the industry for each company in which Applicant has invested.

RESPONSE & OBJECTIONS TO INTERROGATORY NO. 30 Applicant objects to the definition of "Identify" as unduly burdensome and imposing upon Applicant requirements that extend beyond the Trademark Rules of Practice and the Federal Rules of Civil Procedure. Applicant objects to this Interrogatory because it is not limited in geographic scope or time. Applicant also objects to this Interrogatory to the extent information is publicly available or equally available to Opposer. Applicant further objects to this Interrogatory as vague, ambiguous, overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. The marks cited by Opposer as the basis for its Opposition are U.S. Registration Nos. 3604505, 427989, and 3251595. Applicant's investments or potential investments on behalf of its clients are not relevant to any of the DuPont factors, especially with respect to Applicant's activities that are not visible to consumers and prospective purchasers. We are willing to meet and confer with Opposer to better understand Opposer's theory of relevance.


DOCUMENT REQUEST NO. 19 Any Documents Related to any Conferences Applicant has attended.



RESPONSE & OBJECTIONS TO REQUEST NO. 19 Applicant objects to this Document Request on the grounds that it is overbroad and unduly burdensome to require the production of "any" Documents, which Opposer instructs as meaning "all" and "each," given the limited issues in these proceedings. Applicant also objects to the definition of "Relate" to as overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence as it would necessitate the production of voluminous documents that are not relevant or proportional to the needs of the case. Applicant objects to the definition of "Conference" as vague, ambiguous, overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence as it would encompass virtually all events, meetings, and conferences that have no relevance to the claims or defenses in these proceedings. Applicant further objects to this Document Request because it is not limited in geographic scope or time. Subject to, and without waiver of, the foregoing General and Specific Objections, Applicant will produce relevant, non-privileged documents regarding capital introduction conferences, which representatives of Applicant may have attended, if any.


DOCUMENT REQUEST NO. 20 Any Documents Related to each investment Applicant has made since its formation.

RESPONSE & OBJECTIONS TO REQUEST NO. 20 Applicant objects to this Document Request on the grounds that it is overbroad and unduly burdensome to require the production of "any" Documents, which Opposer instructs as meaning "all" and "each," given the limited issues in these proceedings. Applicant also objects to the definition of "Relate" to as overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence as it would necessitate the production of voluminous documents that are not relevant or proportional to the needs of the case. Applicant further objects to this Document Request because it is not limited in geographic scope or time. Applicant objects to the Document Request as vague, ambiguous, overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence because Applicant's investment decisions, which are confidential, as opposed to its investment advisory services, are not relevant, material, or necessary to the prosecution or defense of these proceedings. REQUESTED RELIEF

Withdraw improper objections and produce responsive documents.

TOPIC NO. 17 The companies in which Applicant has invested since its formation.

RESPONSE AND OBJECTIONS TO TOPIC NO. 17 Applicant objects to Topic No. 17 to the extent the information is publicly or equally available to Opposer. Applicant objects to Topic No. 17 to the extent it is not limited in geographic scope to the United States. Applicant objects to Topic No. 17 because it does not describe with reasonable particularity the matters for examination, including, but not only, because it is vague and ambiguous regarding what type of information about companies the Topic seeks. Applicant further objects to Topic No. 17 as overbroad, unduly burdensome, not relevant to the claims or defenses, and not reasonably calculated to lead to the discovery of admissible evidence because Applicant’s investment decisions (especially with respect to information that is not visible to consumers or prospective purchasers) are not relevant, material, or necessary to the prosecution or defense of these proceedings.

REQUESTED RELIEF Withdraw improper objections and designate a witness on this Topic.



TOPIC NO. 20 The role or involvement Applicant has in the management or operations of companies in which it invests.

RESPONSE AND OBJECTIONS TO TOPIC NO. 20 Applicant objects to Topic No. 20 to the extent the information is publicly or equally available to Opposer. Applicant objects to Topic No. 20 to the extent it is not limited in geographic scope to the United States. Applicant objects to Topic No. 20 because it does not describe with reasonable particularity the matters for examination, including, but not only, because the meaning and scope of “role or involvement” are vague and ambiguous. Applicant further objects to Topic No. 20 as overbroad, unduly burdensome, not relevant to the claims or defenses, and not reasonably calculated to lead to the discovery of admissible evidence because Applicant’s engagement with companies in which it invests (especially with respect to information that is not visible to consumers or prospective purchasers) is not relevant, material, or necessary to the prosecution or defense of these proceedings.

REQUESTED RELIEF Withdraw improper objections and designate a witness on this Topic.

SECTION 3.F.: Ambiguous, Inconsistent, and Misleading Responses to RFAs


Admit that Applicant was aware of Opposer's GILEAD trademark prior to adopting Applicant's Marks.


Applicant objects to this Request as vague, ambiguous, and incomprehensible because "Opposer's

GILEAD trademark" is not defined, and Opposer's Notices of Opposition specifically identify three

registered trademarks that are the basis for the Oppositions (U.S. Registration No. 3604505, U.S.

Registration No. 4279898, and U.S. Registration No. 3251595). It is unclear to which trademark this

Request refers. Applicant also objects to this Request as compound because Applicant has two

trademarks. Pursuant to Fed. R. Civ. P. 36, each matter must be separately stated. As a result, this

Request is incapable of a response as posed. Applicant denies Request No. 1.

REQUESTED RELIEF

Withdraw improper objections and specifically admit or deny this request.

REQUEST FOR ADMISSION NO. 9 Admit that Applicant invests in companies providing goods and services related to healthcare.

RESPONSE TO REQUEST FOR ADMISSION NO. 9 Applicant objects to this Request as vague, ambiguous, overbroad, and incomprehensible because the scope of the phrase "related to healthcare" is unclear and could be construed to include numerous types of goods and services with an indirect or tangential relationship to human health. In addition, this Request is vague and ambiguous with respect to whether the Request seeks an admission regarding Applicant's actual investments or the types of investments that are permitted under its investment strategy. As a result, this Request is incapable of a response as posed. Applicant also objects to this Request because it is not limited in geographic scope or time. Applicant further objects to this Request because the companies in which Applicant invests are not relevant to the claims or defenses in these proceedings. Applicant denies Request No. 9. REQUESTED RELIEF


REQUEST FOR ADMISSION NO. 20 Admit that Gilead Capital LP was registered as an entity authorized to do business in the State of New York no earlier than February 5, 2016.



RESPONSE TO REQUEST FOR ADMISSION NO. 20 Applicant objects to this Request as seeking a legal conclusion. Applicant also objects to this Request as vague, ambiguous, and incomprehensible because the State of New York does not register foreign limited partnerships. Applicant denies Request No. 20. REQUESTED RELIEF



Admit that Applicant does not trade commodities futures for others.


Applicant objects to this Request as vague and ambiguous because it is unclear whether the

Request seeks information regarding actual trades that occurred or the types of trades that are

available within Applicants' Services or trades permitted under Applicant's investment strategy.

As a result, this Request is incapable of a response as posed. Applicant objects to this Request

because it is not limited in geographic scope or time. Applicant denies Request No. 22.

REQUESTED RELIEF



Admit that Applicant does not trade debt instruments for others.


Applicant objects to this Request as vague and ambiguous because it is unclear whether the

Request seeks information regarding actual trades that occurred or the types of trades that are

available within Applicant's Services or trades permitted under Applicant's investment strategy.


because it is not limited in geographic scope or time. Applicant denies Request No. 23.

REQUESTED RELIEF



Admit that Applicant does not operate or manage a commodity pool.


Applicant objects to this Request as compound. Pursuant to Fed. R. Civ. P. 36, each matter must

be separately stated. As a result, this Request is incapable of a response as posed. Applicant

also objects to this Request because it is not limited in geographic scope or time. Applicant

denies Request No. 24.

REQUESTED RELIEF


REQUEST FOR ADMISSION NO. 25 Admit that one or more third parties have asked Applicant whether there was any connection or affiliation between Applicant and Opposer.

RESPONSE TO REQUEST FOR ADMISSION NO. 25 Applicant objects to this Request as vague and ambiguous with respect to the meanings of "connection" and "affiliation." Applicant also objects to this Request as compound. Pursuant to Fed. R. Civ. P. 36, each matter must be separately stated. As a result, this Request is incapable of a response as posed. Applicant also objects to this Request because it is not limited in geographic scope of time. Applicant denies Request No. 25.



REQUESTED RELIEF


This is contradicted by GCL’s response to Interrogatory No. 26, where GCL identified two persons who made that exact inquiry—though GCL did not provide contact or other identifying

information beyond the names (Manako Ihaya and Jayson Ward), which Gilead requested.

REQUEST FOR ADMISSION NO. 36 Admit that a trademark clearance search and/or analysis was performed by or for Applicant on the GILEAD CAPITAL trademark prior to Applicant’s adoption of such a mark. RESPONSE TO REQUEST FOR ADMISSION NO. 36 Applicant objects to this Request as vague and ambiguous as to the term “analysis.” Applicant objects to this Request as compound (“and/or,” “by or for”). Pursuant to Fed. R. Civ. P. 36, each matter must be separately stated. As a result, this Request is incapable of a response as posed. Applicant also objects to this Request to the extent it seeks information that is protected by attorney-client privilege, work product immunity, or any other privilege or immunity from disclosure. Applicant further objects to this Request as seeking information that is not relevant to the claims or defenses in these proceedings. Applicant denies Request No. 36.

REQUESTED RELIEF

Withdraw improper objections and specifically admit or deny this request:

GCL’s response to Interrogatory No. 2 and the Privilege Log it produced both reference a “trademark clearance search,” yet no documents have been produced.

REQUEST FOR ADMISSION NO. 37 Admit that a trademark clearance search and/or analysis was performed by or for Applicant on the GILEAD CAPITAL trademark subsequent to Applicant’s adoption of such mark. RESPONSE TO REQUEST NO. 37 Same as above.

REQUESTED RELIEF

Same as above.




Supporting Exhibits

EXHIBIT 2

Opposition No. 91233311 1 MOTION TO COMPEL Declaration of Jon Jekel

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

In the matter of Application Nos. 87/048,887 and 87/048,941

Filed on May 24, 2016

For the Marks GILEAD CAPITAL and GILEAD CAPITAL LEADERSHIP INVESTING

Published in the Official Gazette on November 8, 2016

Gilead Sciences Inc.,

Opposer,

v.

Gilead Capital LP,

Applicant.

Opposition No. 91233311 (Parent) Opposition No. 91233327

DECLARATION OF JON JEKEL

I, Jon Jekel, hereby declare:

1. I am an Associate Attorney at Fish & Richardson P.C., which represents Gilead

Sciences, Inc. (“Gilead” or “Opposer”) in this proceeding. I am licensed to practice law in the State

of California, and am authorized to practice before the Trademark Trial and Appeal Board of the

United States Patent and Trademark Office. I have personal knowledge of the facts stated in this

declaration. I make this declaration primarily for purposes of authentication and do not anticipate the

matters herein to be contradicted.

2. On February 14, 2018, Gilead served Opposer’s first set of requests for admissions,

interrogatories, and document requests upon Applicant, copies of which are attached as Exhibits 3–

5.

3. On May 7, 2018, Gilead served upon Applicant Opposer’s second set of requests for

admissions, interrogatories, and document requests, as well as a deposition notice under Fed. Rule

Civ. P. 30(b)(6), copies of which are attached as Exhibits 6–9.


4. On March 14, 2018, GCL served objections and responses to Gilead’s first set of

requests for admissions, interrogatories, and document requests, copies of which are attached as

Exhibits 10–12.

5. On June 7, 2018, GCL served objections and responses to Gilead’s second set of

requests for admissions, interrogatories, and document requests, copies of which are attached as

Exhibits 13–15.

6. On June 26, 2018, GCL served objections and responses to Gilead’s 30(b)(6)

deposition notice, a copy of which is attached as Exhibit 16.

7. On March 28, 2018, Opposer’s counsel sent a deficiency notice to GCL concerning

the responses to Gilead’s first set of requests for admissions, interrogatories, and document requests.

A copy of this deficiency notice is attached as Exhibit 17.

8. On March 30, 2018, the Parties met and conferred (by telephone) regarding the

deficiencies with GCL’s discovery responses.

9. On May 14, 2018, Opposer’s counsel sent a supplemental deficiency notice to GCL

concerning its responses to Gilead’s first set of requests for admissions, interrogatories, and document

requests. A copy of the supplemental notice is attached as Exhibit 18.

10. On May 23, 2018, GCL responded to the May 14, 2018, deficiency notice with the

email attached as Exhibit 19.

11. On September 13, 2018, Opposer’s counsel sent a deficiency notice to GCL

concerning its responses to Gilead’s discovery requests and deposition notices, with the primary focus

being GCL’s objections and responses to Gilead’s second set of requests for admissions,

interrogatories, and document requests. A copy of the deficiency notice is attached as Exhibit 20.

12. On September 26, 2018, GCL responded to the September 13th deficiency notice in

the correspondence attached as Exhibit 21.


13. GCL produced 372 documents purportedly responsive to Gilead’s document requests

on March 14, 2018, March 23, 2018, and September 10, 2018.

14. To date, GCL has failed or refused to produce:

a. Any trademark search reports or other analyses concerning the GILEAD

CAPITAL Marks;

b. Any documents showing its use of the GILEAD CAPITAL Marks in U.S.

commerce on or in connection with any of the services described in U.S. Serial

Nos. 87048887 and 87048941;

c. Any documents identifying the first customer(s) for any of GCL’s claimed services;

d. Any documents establishing that GCL had authority to provide its claimed services

on or before the claimed date of first use; or

e. Any documents related to the investments GCL makes, the financial conferences

it attends, or other involvement it has with the investment community.

15. Attached as Exhibit 22 is a copy of the Specimen of Use for U.S. Serial Nos. 87048887

and 87048941.

16. Attached as Exhibit 23 is a copy of the Certificate of Formation for Gilead Capital

LLC, an entity that is now known as Gilead Capital GP LLC, which services as GCL’s general partner.

17. Attached as Exhibit 24 is a copy of the Application for Authority for GCL to operate

as a foreign limited partnership in the State of New York.

18. Attached as Exhibit 25 is a copy of the Privilege Log that was produced by GCL.

SIGNED UNDER PENALTY OF PERJURY THIS 12th DAY OF FEBRUARY, 2019:

/s/ Jon Jekel

Jonathan A. Jekel




Supporting Exhibits

EXHIBIT 3




Supporting Exhibits

EXHIBIT 4




Supporting Exhibits

EXHIBIT 5




Supporting Exhibits

EXHIBIT 6

Attorney’s Docket No.: 36583-0045PP1

1

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

In the matter of application Serial Nos.:

Ser. No. 87/048,887 for the mark GILEAD CAPITAL

Ser. No. 87/048,941 for the mark GILEAD CAPITAL LEADERSHIP INVESTING

Filed on May 24, 2016 Published in the Official Gazette on November 8, 2016

GILEAD SCIENCES, INC.,

Opposer,

v. GILEAD CAPITAL LP,

Applicant.


OPPOSER’S SECOND SET OF REQUESTS FOR ADMISSIONS TO APPLICANT

Under Rules 26 and 36 of the Federal Rules of Civil Procedure and Rules 2.116 and 2.120

of the Trademark Rules of Practice, Opposer Gilead Sciences, Inc. (“Opposer”), by and through

its undersigned counsel, hereby serve on Applicant Gilead Capital LP. (“Applicant”) the following

Requests for Admission, which Applicant shall admit or deny the truth of the facts set forth herein

and answer, separately and fully in writing under oath, within 30 days of Opposer serving this

document upon Applicant.

DEFINITIONS

For purposes of Opposer’s Second Set of Requests for Admissions, Opposer adopts the

definitions and instructions set forth in Opposer’s First Set of Requests for Admissions with the

following exceptions:


2

1. “Opposer” refers to Gilead Sciences, Inc., and, where applicable, any present or

former owner, officer, director, employee, servant, agent, attorney or other representative acting

on its behalf, and shall include any parent corporation, or wholly-owned or partially-owned

subsidiary, predecessor, successor, assigns, or affiliate.

2. “Opposer’s Mark” refers to the word GILEAD as used by Opposer to identify and

distinguish its goods and services, including without limitation those goods and services identified

in U.S. Reg. Nos. 3604505, 4279898, and 3251595.

3. The “GILEAD CAPITAL Mark” refers to the mark reflected in U.S. Serial No.

87/048,877.

4. The “GILEAD CAPITAL LEADERSHIP INVESTING Mark” refers to the mark

reflected in U.S. Serial No. 87/048,941.

5. The term “broker” shall have the definition recited in 15 U.S.C. § 78c(a)(4)(A),

namely, “any person engaged in the business of effecting transactions in securities for the account

of others.”

6. Requests referencing the “health” or “medical” industry or field refer to persons

providing goods or services that are regulated by the Food and Drug Administration, or which

would occupy would occupy North American Industry Classification System (“NAICS”) Sector

62, NAICS Industry Group 3254, or NAICS Industry Group 4461. Additionally, persons in the

“health” or “medical” industry include persons who develop, manufacture, or sell goods or services

that are designed to be used primarily by persons described in the preceding sentence.


3

REQUESTS FOR ADMISSION

REQUEST NO. 32.

Admit that Applicant was aware of Opposer’s use of GILEAD as part of its company name

when Applicant adopted the GILEAD CAPITAL trademark.

REQUEST NO. 33.

Admit that Applicant considered the possibility of a trademark dispute with Opposer when

Applicant was considering adopting GILEAD CAPITAL as a trademark.

REQUEST NO. 34.

Admit that Applicant has invested in at least one company that offers goods or services to

the health or medical industry.

REQUEST NO. 35.

Admit that third parties have referred to Applicant as “Gilead.”

REQUEST NO. 36.


on the GILEAD CAPITAL trademark prior to Applicant’s adoption of such mark.

REQUEST NO. 37.


on the GILEAD CAPITAL trademark susequent to Applicant’s adoption of such mark.

FISH & RICHARDSON P.C.

Dated: May 7, 2018 /s/ Lisa Greenwald-Swire

Lisa Greenwald-Swire

Robert M. O’Connell, Jr.

Attorneys for Opposer GILEAD SCIENCES, INC.




Supporting Exhibits

EXHIBIT 7

Attorney Docket No.: 36583-0045PP1









Opposer,

v.

GILEAD CAPITAL LP,

Applicant.


OPPOSER’S SECOND SET OF INTERROGATORIES TO APPLICANT

Under Rules 26 and 33 of the Federal Rules of Civil Procedure and Rule 2.120 of the

Trademark Rules of Practice, Opposer Gilead Sciences, Inc. (“Opposer”), hereby requests that

Applicant Gilead Capital LP (“Applicant”), answer the interrogatories set forth below separately

and fully in writing and under oath. The requested discovery should be served within thirty (30)

days of the date of service, in accordance with Trademark Rules 2.119 and 2.120.


2

DEFINITIONS AND INSTRUCTIONS

For purposes of Opposer’s Second Set of Interrogatories, Opposer adopts the definitions

and instructions set forth in Opposer’s Second Set of Requests for Production of Documents and

Things.

INTERROGATORIES

INTERROGATORY NO. 21:

Identify the date(s) on which Applicant was registered with, or otherwise received any

regulatory permits or approvals to do business from, any state or federal agencies or other

regulatory authorities.


Identify the earliest date upon which Applicant intends to rely to establish priority in this

proceeding.


For the date identified in response to Interrogatory No. 22, describe in detail the basis for

Applicant’s reliance on such date.


For the date identified in response to Interrogatory No. 22, Identify all documents or other

evidence that support your response.


Identify each brokerage or other third party Applicant has used to reach potential clients,

as referred to in Applicant’s responses to Interrogatory Nos. 7 and 17.


Identify all third parties who have mentioned to Applicant any similarity between

Opposer’s name or Mark and Applicant’s name or Mark at any time from January 1, 2014, to the

present.


Identify any conferences (including trade shows or conventions) that have solicited

sponsorship, financial support or other participation from Applicant.


3


Identify any organizations of which Applicant is a member.


Identify all general partners and limited partners of Applicant.


Identify the industry for each company in which Applicant has invested.


Describe in detail the goods or services offered by each company in which Applicant has

invested.


Identify any positions on the Board of Directors of a third-party company held by any

general partner of Applicant from 2015 through the present.


Describe in detail the basis for your denial of ¶ 22 of the Amended Notice of Opposition

filed by Opposer on September 15, 2017.











4





Attorneys for Opposer

GILEAD SCIENCES, INC.




Supporting Exhibits

EXHIBIT 8










Opposer,

v.

GILEAD CAPITAL LP,

Applicant.


OPPOSER’S SECOND SET OF REQUESTS FOR

PRODUCTION OF DOCUMENTS AND THINGS TO APPLICANT

Under Rule 34 of the Federal Rules of Civil Procedure and Rule 2.120 of the Trademark

Rules of Practice, Opposer Gilead Sciences, Inc. (“Opposer”), by and through its attorney, hereby

requests that Applicant Gilead Capital LP (“Applicant”) produce the following Documents and/or

tangible Things within Applicant’s possession, custody or control. Such Documents and Things,

or copies of them, should be made available at the offices of Fish & Richardson P.C., 500 Arguello

Street, Suite 500, Redwood City, CA 94063 within 30 days of Opposer serving this document upon

Applicant.


2


For purposes of Opposer’s Second Set of Requests for Production of Documents and

Things, Opposer adopts the definitions and instructions set forth in Opposer’s First Set of

Interrogatories and Requests for Production of Documents and Things except as follows:







in U.S. Reg. Nos. 3604505, 4279898, and 3251595.


87/048,877.



5. “Date” shall mean the exact day, month and year, if ascertainable; if not

ascertainable, the term means the closest approximation that can be made by means of relationship

to other events, locations or matters.

6. When referring to a person, “Identify” means to give (to the extent known) the

person’s full name, present or last known address, place of employment, and contact information.

When referring to a document, “Identify” means to give (to the extent known) the type of

document, the general subject matter of the document, the date on which the document was created,


3

the author, addressee, and recipient of the document, and the current status, custodian, and location

of the document.

7. Requests referencing the “health” or “medical” industry or field refer to persons

providing goods or services that are regulated by the Food and Drug Administration, or which

would occupy North American Industry Classification System (“NAICS”) Sector 62, NAICS

Industry Group 3254, or NAICS Industry Group 4461. Additionally, persons in the “health” or

“medical” industry include persons who develop, manufacture, or sell goods or services that are

designed to be used primarily by persons described in the preceding sentence.

REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS

REQUEST NO. 32.

Documents sufficient to identify the targets and amounts of Applicant’s investments in

companies that offer goods or services in the pharmaceutical, biotech or health/medical industries.

REQUEST NO. 33.

All Documents that identify and describe Applicant’s investment strategy, as referred to in

Applicant's Responses to Interrogatory No. 3, Request for Admission No. 9, Request for

Admission No. 22, and Request for Admission No. 23.

REQUEST NO. 34.

Documents sufficient to identify and describe in detail the process a customer would

undertake to purchase or procure Applicant’s Services.

REQUEST NO. 35.

All Documents that evidence the steps Applicant has taken to comply with regulatory

requirements necessary for Applicant to render Applicant’s Services.


4

REQUEST NO. 36.

All Documents that refer or relate to any instances in which a Person inquired or

commented about any possible relationship between Opposer and Applicant.

REQUEST NO. 37.

All Documents in your possession that mention Opposer, other than documents obtained

from Opposer, the pleadings in the Opposition, and correspondence to our from Opposer’s counsel.

REQUEST NO. 38.

All Documents that support your denial of ¶ 22 of the Amended Notice of Opposition filed

by Opposer on September 15, 2017.

REQUEST NO. 39.



REQUEST NO. 40.



REQUEST NO. 41.



REQUEST NO. 42.

All Documents that relate to Applicant’s use of a brokerage firm or other third party to

reach potential clients, as referred to in Applicant’s responses to Interrogatory Nos. 7 and 17.


5

REQUEST NO. 43.

Documents sufficient to describe the nature of the goods and services rendered by each

company in which Applicant has invested.


Respectfully submitted,




Attorney for Opposer





Supporting Exhibits

EXHIBIT 9










Opposer,

v.

GILEAD CAPITAL LP,

Applicant.


OPPOSER’S NOTICE OF RULE 30(b)6) DEPOSITION OF APPLICANT

PLEASE TAKE NOTICE that pursuant to Fed. R. Civ. P. Rule 30(b)(6) and Rules 2.116

and 2.120 of the Trademark Rules of Practice, Opposer Gilead Sciences, Inc. (“Opposer”) will

take the deposition upon oral examination of the person(s) designated by Applicant Gilead Capital

LP (“Applicant”) with respect to the topics set forth below. The deposition will commence on a

date and time mutually agreed upon by the parties at the New York offices of Fish & Richardson

P.C., 601 Lexington Ave., 52nd Floor, New York, NY 10022-4611. The deposition shall be

conducted before a court reporter, notary public, or other person authorized by law to administer

oaths, and will be recorded by a certified stenographic reporter, videotape, and real-time instant

visual display (e.g., LiveNote). The deposition will continue from day to day until completed.

Opposer reserves the right to seek relief from the Trademark Trial and Appeal Board if the


2

designated deponent is not properly prepared to testify on Applicant’s behalf regarding each of the

identified topics.

PLEASE TAKE FURTHER NOTICE that Applicant is requested to produce, at or before

the scheduled deposition, all documents upon which the designated deponent will rely.






2. “Applicant” refers to Gilead Capital LP, and, where applicable, any present or




3. The terms “You” or “Your” shall refer to Applicant.

4. The term “person” shall include both natural persons and corporate or other

business entities, whether or not they are employed by or affiliated with either Party, and any of

that person’s predecessors or successors-in-interest, affiliates, assignees, parents, subsidiaries,

agents, representatives, departments, or divisions, whether past or present, and any present or

former directors, officers, representatives, employees, attorneys, agents, or other persons or entities

acting on that person’s behalf or under their control. The acts or knowledge of a person are defined

to include the acts and knowledge of that person’s directors, officers, members, employees,

representatives, agents, and attorneys.


3

5. The term “trademark” or “mark” shall mean and include trademarks, service marks,

collective marks, certification marks, and trade names, as defined in 15 U.S.C. § 1127.



in U.S. Reg. Nos. 3604505, 4279898, and 3251595.


87/048,887.



9. “Applicant’s Services” means those services identified in U.S. Serial Nos.

87/048,887 and 87/048,941.

10. “Opposition” or “Oppositions” refers to Opposition Proceeding Nos. 91233311 and

91233327, as consolidated into Opposition No. 91233311 by the order of the Trademark Trial and

Appeal Board on May 10, 2017.

11. “Document” shall have the meaning set forth in Rule 34 of the Federal Rules of

Civil Procedure, and Rule 1001 of the Federal Rules of Evidence, and shall include, without

limitation, any printed, typed, recorded, written, graphic, or photographic matter (including

electronic, audio, or video tape recordings), however printed, produced, reproduced, coded, or

stored. A draft or non-identical copy is a separate Document within the meaning of this term.

Documents include Communications and Things, defined below.

12. “Thing(s)” is used in the broadest sense to include everything contemplated by Rule

34(a)(1)(B) of the Federal Rules of Civil Procedure.


4

13. “Communication” means any oral, written, telephonic, electronic, or radio

frequency transmission contact or attempted contact between two or more persons, companies or

organizations, or government entities, including all of the directors, officers, officials, employees,

staffs, or representatives thereof, and shall include, without limitation, written communications, as

defined herein by the term “Document,” and oral communications, including, without limitation,

face-to-face meetings, telephone conversations, SMS messages, PIN messages, video or picture

messages, letters, e-mails, invoices, electronic transmission of information, conversations,

statements, discussions, debates, arguments, disclosures, interviews, consultation and every other

manner of oral utterance.

14. The term “and” shall be construed to include “or” and vice versa, and shall be the

logical equivalent of “and/or,” as necessary to bring within the scope of the deposition all responses

that might otherwise be construed as outside its scope.

15. The use of the singular form of any word also includes the plural and vice versa.

16. The terms “relating,” “regarding,” “related,” or “relates” mean comprises,

constitutes, contains, embodies, reflects, identifies, states, refers to, deals with, or is any way

pertinent to that subject.

17. “Date” shall mean the exact day, month and year, if ascertainable; if not

ascertainable, the term means the closest approximation that can be made by means of relationship

to other events, locations or matters.

18. When referring to a person, “Identify” means to give (to the extent known) the

person’s full name, present or last known address, and place of employment. When referring to a

document, “Identify” means to give (to the extent known) the type of document, the general subject


5

matter of the document, the date on which the document was created, the author, addressee, and

recipient of the document, and the current status, custodian, and location of the document.

19. “Commerce” or “U.S. commerce” shall have the meaning and scope prescribed in

the Lanham Act, 15 U.S.C. § 1127, namely, all commerce which may be lawfully regulated by

Congress.

20. The relevant time period for all topics shall be from January 1, 2010, to present.


6

TOPICS

1. The corporate organization and structure of Applicant and its partners.

2. The relationship among and function of the various entities formed by Jeffrey

Strong having the word “Gilead” in their names.

3. The selection and adoption of the GILEAD CAPITAL name and trademark.

4. Any contracts or agreements related to the GILEAD CAPITAL Mark or the

GILEAD CAPITAL LEADERSHIP INVESTING Mark.

5. Any clearance analyses or other evaluations that were performed prior to adopting

the GILEAD CAPITAL name and trademark.

6. The date when Applicant first became aware of Opposer’s use of the term GILEAD.

7. The date(s) on which Applicant first provided each of Applicant’s Services in U.S.

commerce.

8. The manner in which Applicant has provided each of Applicant’s Services in U.S.

commerce.

9. The customers or clients of Applicant who received Applicant’s Services.

10. The ways in which Applicant has advertised, marketed, or promoted Applicant's

Services.

11. The trade channels or marketing channels for Applicant’s Services.

12. The websites, social media pages, or other online locations or media where

Applicant markets, promotes, or provides information regarding Applicant’s Services.

13. The date(s) on which Applicant obtained any licenses, certifications, registrations,

or other authorizations related to Applicant's Services.

14. Any instances of confusion between Opposer and Applicant, to Applicant's

knowledge.

15. Any instances where a third party mentioned Opposer to Applicant.

16. The professional conferences Applicant attends.

17. The companies in which Applicant has invested since its formation.

18. The method or procedure by which Applicant identifies potential companies to

target for investment.


7

19. Applicant’s investment strategy, as referred to in Applicant's Responses to

Interrogatory No. 3, Request for Admission No. 9, Request for Admission No. 22, and Request for

Admission No. 23.

20. The role or involvement Applicant has in the management or operations of

companies in which it invests.

21. The role and responsibilities of each of Applicant’s officers, directors, and partners.

22. Applicant’s policies, practices, and procedures with respect to the retention of

electronic and non-electronic documents, files, correspondence, and emails in general and

pertaining to the Opposition.

23. All persons whom Applicant intends to rely upon as affirmative fact witnesses in

the Opposition, and the facts or subject matter about which each such witness is expected to testify.

24. All allegations and denials that Applicant asserts and intends to assert in this

Opposition, including but not limited to those set forth in Applicant’s Answer and Counterclaim.

25. The documents Applicant has produced or will produce in this Opposition relating

to the topics herein as to which the witness has been designated.

26. The specimens of use submitted to the USPTO in support of the applications for

the GILEAD CAPITAL Mark and the GILEAD CAPITAL LEADERSHIP INVESTING Mark.





Attorneys for Opposer





Supporting Exhibits

EXHIBIT 10

1

UNITED STATES PATENT AND TRADEMARK OFFICE

Trademark Trial and Appeal Board

P.O. Box 1451

Alexandria, VA 22313-1451

General Contact Number: 571-272-8500

EJW/lw



Gilead Sciences, Inc.

v.

Gilead Capital LP

APPLICANT’S RESPONSES AND OBJECTIONS

TO OPPOSER’S REQUESTS FOR ADMISSION

Pursuant to Rules 26 and 36 of the Federal Rules of Civil Procedure and Rules 2.116 and

2.120 of the Trademark Rules of Practice, Applicant Gilead Capital LP (“Applicant”) or (“Gilead

Capital”), by and through its attorneys, subject to the objections set forth herein, respond to

Opposer’s Requests for Admission to Applicant (“Requests for Admission” or “Requests”), as

follows:

GENERAL RESPONSES

1. Applicant’s responses and objections to the Requests for Admission are based on

information presently known to Applicant. Applicant reserves the right to supplement, amend or

modify these responses and objections in the event and to the extent future discovery so justifies.

Should Applicant at any time supplement or amend its responses and/or objections to any

Interrogatory, Applicant reserves the right to assert any available privilege or other protection as

to any response that might otherwise be discoverable in connection with Applicant’s

supplementation or amendment.

2

2. These responses are made without waiver of: (i) any objections as to competency,

relevancy, materiality, privilege, and admissibility of each response, or any other proper grounds,

including information produced and the subject matter thereof, in these or any other proceedings;

(ii) the right to object to the use of any particular response or information provided pursuant to

such response, or the subject matter thereof, on any ground in these or any other proceedings;

and (iii) the right, at any time, to revise, correct, supplement, or clarify any of these responses.

3. Applicant expressly reserves its right to rely at any time, including in these or any

other proceedings, on information that is subsequently discovered or was omitted from these

responses as a result of mistake, error, oversight, or inadvertence.

4. Applicant’s responses and objections to the Requests for Admission are subject to

any protective order that may be agreed upon by the parties and/or entered in these proceedings.

GENERAL OBJECTIONS

1. Applicant objects to the Requests for Admission to the extent they seek to impose

upon Applicant requirements that extend beyond the Trademark Rules of Practice and the

Federal Rules of Civil Procedure as incorporated therein.

2. Applicant objects to each Request for Admission to the extent that it seeks

information that is not within Applicant’s knowledge, possession, custody, or control.

3. Applicant objects to each Request for Admission to the extent it seeks information

that is protected from disclosure by the attorney-client privilege, work product immunity or any

other privilege or immunity against disclosure.


information that is neither material nor necessary to the prosecution or defense of these

proceedings.

3

5. Applicant objects to each Request for Admission to the extent that it is vague,

ambiguous, lacking in specificity, or otherwise incomprehensible or inscrutable.

6. Applicant objects to each Request for Admission to the extent that it seeks a

response that is duplicative of responses to one or more of the other Interrogatories.

7. Applicant objects to each Request for Admission to the extent that it seeks the

disclosure of information of a confidential and/or proprietary nature.


information that is publicly-available or otherwise equally or more available to Opposer.

9. Applicant objects to each Request for Admission as vague, ambiguous,

overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of

admissible evidence, to the extent that it is not geographically limited. The Trademark Trial and


States. See TBMP §102.01. Applicant will not provide responses regarding or related to non-

U.S. persons or non-U.S. activities.



admissible evidence, to the extent that it is not limited in time or specify a relevant date for a

response. Applicant will construe the relevant time period for each Request for Admission as

January 15, 2016, the date of first use listed in Gilead Capital’s Application Serial No.

87/048887 and Application Serial No. 87/048941, through March 8, 2017, the date when

Opposer presumably had a reasonable basis for filing its Notice of Opposition sufficient to

comply with Fed. R. Civ. P. 11. (“Relevant Time Period”). Pursuant to Fed. R. Civ. P. 11, by

presenting Opposer’s Notices of Opposition, dated March 8, 2017, Opposer’s counsel, Lisa

4

Greenwald-Swire of Fish & Richardson P.C., certified that to the best of her knowledge,

information, and belief, formed after an inquiry reasonable under the circumstances, that the

factual contentions have evidentiary support. Opposer’s counsel either had a reasonable basis for

filing the Oppositions on March 8, 2017, or she did not. Opposer is not permitted to file

Opposition proceedings without a reasonable basis, with the hope of uncovering information

through a fishing expedition. Furthermore, information after the date the Opposition proceedings

commenced, which are relevant to the claims or defenses in these proceedings, are most likely

protected from disclosure by attorney work product immunity. Applicant will construe the

Requests for Admission as seeking information from within the Relevant Time Period, and

Applicant’s responses will be as of March 8, 2017.

11. Applicant objects to each Request for Admission to the extent they imply the

existence of facts or circumstances which do not or did not exist, and to the extent they state or

assume legal conclusions. In providing these responses and objections to the Requests for

Admission, Applicant does not admit the factual or legal premise of any of the Requests for

Admission.

12. Applicant objects to the definition of “Applicant,” “You,” and “Your” as


admissible evidence. Gilead Capital is the entity applying for registration of the GILEAD

CAPITAL and GILEAD CAPITAL LEADERSHIP INVESTING Marks in Application Serial

Nos. 87/048887 and 87/048941. Gilead Capital will construe “Applicant,” “You,” and “Your”

solely as Gilead Capital and representatives acting on its behalf.

13. Applicant objects to the definition of “Opposer’s Mark” because the definition

assumes facts that do not exist and erroneous legal conclusions. The word “Gilead” by itself is

5

not a trademark, and Opposer does not have universal trademark rights in the word “Gilead.”

Applicant also objects to the definition of “Opposer’s Mark” as vague, ambiguous, unduly

burdensome, and not reasonably calculated to lead to the discovery of admissible evidence

because Opposer has not sufficiently identified the purported common law marks on which it

bases its Opposition, and the word “Gilead” is part of the GILEAD CAPITAL and GILEAD

CAPITAL LEADERSHIP INVESTING Marks, such that Opposer’s Requests for Admission call

for a response for virtually every instance in which the word “Gilead” appears. Gilead Capital

objects to the definition of “Opposer’s Mark” as vague and ambiguous because Opposer’s

Notices of Opposition specifically identify three registered trademarks that are the basis for the

Oppositions (U.S. Registration No. 3604505, U.S. Registration No. 4279898, and U.S.

Registration No. 3251595) and it is unclear to which one the Requests for Admission refer.

14. The General Objections set forth herein are incorporated into each of the

following responses to the Requests for Admission, and the General Objections shall be deemed

continuing as to each Request and are not waived, or in any way limited, by the following

responses. By setting forth any specific objections, Applicant does not intend to limit, restrict, or

waive any of the General Objections set forth herein.

15. Subject to and without waiving the foregoing General Objections, and within the

limits of the Specific Objections set forth below in response to particular Requests for

Admission, Applicant responds as follows:

SPECIFIC RESPONSES AND OBJECTIONS

REQUEST NO. 1

Admit that Applicant was aware of Opposer’s GILEAD trademark prior to adopting Applicant’s

Marks.

6

RESPONSE TO REQUEST NO. 1


“Opposer’s GILEAD trademark” is not defined, and Opposer’s Notices of Opposition

specifically identify three registered trademarks that are the basis for the Oppositions (U.S.






REQUEST NO. 2

Admit that Applicant was aware of Opposer’s GILEAD trademark prior to May 24, 2016.






It is unclear to which trademark this Request refers. Pursuant to Fed. R. Civ. P. 36, each matter



REQUEST NO. 3

Admit that CAPITAL is a generic or merely descriptive term in the context of Applicant’s

Services.

7


Applicant objects to this Request as seeking a legal conclusion. Applicant also objects to

this Request as compound. Pursuant to Fed. R. Civ. P. 36, each matter must be separately stated.

Applicant further objects to this Request as vague, ambiguous, and incomprehensible because a

thing or word cannot be “generic” or “descriptive” in isolation, and the Request does not indicate

a reference point (i.e., descriptive of what?). The phrase “in the context of Applicant’s Services”

is similarly vague and ambiguous and does not serve as a comprehensible reference point. As a

result, this Request is incapable of a response as posed.


REQUEST NO. 4

Admit that the GILEAD portion of Applicant’s Marks is identical to Opposer’s GILEAD

trademark.










REQUEST NO. 5

Admit that Applicant’s investors include institutional investors.

8


Applicant objects to this Request as vague, ambiguous, and incomprehensible because it

is unclear whether the Request seeks information regarding investors in Applicant or Applicant’s

clients who are investors. Although Applicant has used “investor” to refer to its clients, Opposer

has used the same term to refer to its owners. (E.g., Dkt. #19 at 3, Dkt. #21 at 7). As a result,

this Request is incapable of a response as posed. Applicant also objects to this Request because

it is not limited in geographic scope or time.


REQUEST NO. 6

Admit that Applicant’s investors include individual investors.



is unclear whether the Request seeks information regarding investors in Applicant or Applicant’s

clients who are investors. Although Applicant has used “investor” to refer to its clients, Opposer

has used the same term to refer to its owners. (E.g., Dkt. #19 at 3, Dkt. #21 at 7). Applicant also

objects to this Request because it is not limited in geographic scope or time. As a result, this

Request is incapable of a response as posed.


REQUEST NO. 7

Admit that Applicant invested in Landauer, Inc., a company that provides good or services to the

healthcare industry.


Applicant objects to this Request as vague and ambiguous with respect to the term

“healthcare industry.” Applicant objects to the description of Landauer, Inc. in this Request as

9

assuming or implying the existence of facts that do not exist and characterizing Landauer, Inc. in

an inaccurate or incomplete way. Applicant also objects to this Request because it is not limited

in time. Applicant further objects to this Request because the companies in which Applicant

invests are not relevant to the claims or defenses in these proceedings.

Subject to and without waiver of its objections, Applicant admits that it invested in

Landauer, Inc. during the Relevant Time Period.

REQUEST NO. 8

Admit that Applicant invested in Computer Programs and Systems, Inc., a company that

provides software to the healthcare industry.


Applicant objects to this Request as vague and ambiguous with respect to the term

“healthcare industry.” Applicant objects to the description of Computer Programs and Systems,

Inc. in this Request as assuming or implying the existence of facts that do not exist and

characterizing Computer Programs and Systems, Inc. in an inaccurate or incomplete way.

Applicant also objects to this Request because it is not limited in time. Applicant further objects

to this Request because the companies in which Applicant invests are not relevant to the claims

or defenses in these proceedings.

Subject to and without waiver of its objections, Applicant admits that it invested in

Computer Programs and Systems, Inc. during the Relevant Time Period.

REQUEST NO. 9

Admit that Applicant invests in companies providing goods and services related to healthcare.


Applicant objects to this Request as vague, ambiguous, overbroad, and incomprehensible

because the scope of the phrase “related to healthcare” is unclear and could be construed to

10

include numerous types of goods and services with an indirect or tangential relationship to

human health. In addition, this Request is vague and ambiguous with respect to whether the

Request seeks an admission regarding Applicant’s actual investments or the types of investments

that are permitted under its investment strategy. As a result, this Request is incapable of a

response as posed. Applicant also objects to this Request because it is not limited in geographic

scope or time. Applicant further objects to this Request because the companies in which

Applicant invests are not relevant to the claims or defenses in these proceedings.


REQUEST NO. 10

Admit that Applicant refers to itself as “Gilead” in communications with third parties.


Applicant objects to this Request because it is not limited in geographic scope or time.

Applicant also objects to this Request because it is not relevant to the claims or defenses in these

proceedings.

Subject to and without waiver of its objections, Applicant admits that it has referred to

itself as “Gilead” in some communications with third parties in the United States during the

Relevant Time Period.

REQUEST NO. 11

Admit that Applicant communicates with entities it targets for investment on letterhead bearing

the following:

11



is unclear what “targets for investment” means, including at what point in the investment

research process, a company becomes a “target” and whether the Request seeks information

regarding companies considered for investment but in which the Applicant did not invest, or

whether it also includes companies in which Applicant did invest. As a result, this Request is

incapable of a response as posed. Applicant also objects to this Request because it assumes or

implies facts that do not exist. Applicant further objects to this Request because it is not limited

in geographic scope or time.


REQUEST NO. 12

Admit that Applicant (as defined) sent communications containing the GILEAD CAPITAL

name to solicit potential investors prior to January 1, 2016.


Applicant objects to the definition of “Applicant” as overbroad, unduly burdensome, and

not reasonably calculated to lead to the discovery of admissible evidence. Gilead Capital is the

entity applying for registration of the GILEAD CAPITAL and GILEAD CAPITAL

LEADERSHIP INVESTING Marks in Application Serial Nos. 87/048887 and 87/048941.

Applicant will construe “Applicant” as Gilead Capital. Applicant also objects to this Request

because it is not limited in geographic scope and seeks information outside the Relevant Time

Period.


12

REQUEST NO. 13

Admit that Applicant (as defined) has been a member of the Board of Directors for a company in

which Applicant invested.







because it is not limited in geographic scope or time.


REQUEST NO. 14

Admit that Kanchana Wangkeo Leung does not have first-hand knowledge of the claimed date of

first use of Applicant’s Marks.



is unclear what first-hand knowledge about a specific date is. Applicant also objects to this

Request as compound because Applicant has two trademarks. Pursuant to Fed. R. Civ. P. 36,

each matter must be separately stated. As a result, this Request is incapable of a response as

posed.


REQUEST NO. 15

Admit that Applicant was formed on January 12, 2016.

13






Applicant will construe “Applicant” as Gilead Capital.

Subject to and without waiver of its objections, Applicant admits that Gilead Capital was

formed on January 12, 2017.

REQUEST NO. 16

Admit that Applicant sent communications to bearing the GILEAD CAPITAL name to potential

target companies prior to January 1, 2016.







because it is not limited in geographic scope.


REQUEST NO. 17

Admit that Applicant’s registration with the Financial Industry Regulatory Authority was

effective no earlier than January 27, 2016.

14



this Request because it is not relevant to the claims or defenses in these proceedings.



Admit that Applicant’s registration with the Securities and Exchange Commission was effective

no earlier than January 27, 2016.

RESPONSE NO. 18


this Request because it is not relevant to the claims or defenses in these proceedings.

Subject to and without waiver of its objections, Applicant admits that Gilead Capital’s

registration with the Securities and Exchange Commission was effective on January 27, 2016.

REQUEST NO. 19

Admit that as of January 15, 2016, Applicant did not have legal authority to provide every

service listed in Applicant’s Services.



this Request as vague, ambiguous, and compound because “Applicant’s Services” is defined to

include multiple services and the Request seeks information about every service. Pursuant to

Fed. R. Civ. P. 36, each matter must be separately stated. As a result, this Request is incapable

of a response as posed. Applicant further objects to this Request because it is not limited in

geographic scope.


15

REQUEST NO. 20

Admit that Gilead Capital LP was registered as an entity authorized to do business in the State of

New York no earlier than February 5, 2016.



this Request as vague, ambiguous, and incomprehensible because the State of New York does

not register foreign limited partnerships.


REQUEST NO. 21

Admit that Gilead Capital LP did not provide any of the services identified in Application Serial

No. 87/048887 on or before January 15, 2016.


Applicant also objects to this Request as vague, ambiguous, and compound because more

than one service is identified in Application Serial No. 87/04887. Pursuant to Fed. R. Civ. P. 36,

each matter must be separately stated. As a result, this Request is incapable of a response as

posed.


REQUEST NO. 22

Admit that Applicant does not trade commodities futures for others.


Applicant objects to this Request as vague and ambiguous because it is unclear whether

the Request seeks information regarding actual trades that occurred or the types of trades that are

available within Applicants’ Services or trades permitted under Applicant’s investment strategy.

16




REQUEST NO. 23

Admit that Applicant does not trade debt instruments for others.


Applicant objects to this Request as vague and ambiguous because it is unclear whether

the Request seeks information regarding actual trades that occurred or the types of trades that are

available within Applicant’s Services or trades permitted under Applicant’s investment strategy.




REQUEST NO. 24

Admit that Applicant does not operate or manage a commodity pool.


Applicant objects to this Request as compound. Pursuant to Fed. R. Civ. P. 36, each

matter must be separately stated. As a result, this Request is incapable of a response as posed.

Applicant also objects to this Request because it is not limited in geographic scope or time.


REQUEST NO. 25

Admit that one or more third parties have asked Applicant whether there was any connection or

affiliation between Applicant and Opposer.

17


Applicant objects to this Request as vague and ambiguous with respect to the meanings

of “connection” and “affiliation.” Applicant also objects to this Request as compound. Pursuant

to Fed. R. Civ. P. 36, each matter must be separately stated. As a result, this Request is

incapable of a response as posed. Applicant also objects to this Request because it is not limited

in geographic scope of time.


REQUEST NO. 26

Admit that when Applicant first received a correspondence from Opposer regarding the GILEAD

CAPITAL trademark, Applicant had been actively providing services under the GILEAD

CAPITAL trademark for less than 15 months.


Applicant objects to this Request as vague and ambiguous because it does not identify a

date on which Applicant purportedly received correspondence from Opposer. Applicant also

objects to this Request as vague and ambiguous with respect to the meaning of “actively

providing” and what qualifies as “actively providing” versus “providing.” As a result, this

Request is incapable of a response as posed.


REQUEST NO. 27

Admit that Applicant or its agents may be involved in the management of companies that

provide goods or services to the healthcare industry.


Applicant objects to this Request as vague and ambiguous with respect to the meaning

and scope of “involved in the management” and “healthcare industry.” Applicant also objects to

this Request as compound because it seeks information about Applicant or Applicant’s agents.

18

Pursuant to Fed. R. Civ. P. 36, each matter must be separately stated. As a result, this Request is


in geographic scope or time. Applicant further objects to this Request because it is not relevant

to the claims or defenses in these proceedings.


REQUEST NO. 28

Admit that Applicant or its agents may be involved in the operations of companies that provide

goods or services to the healthcare industry.


Applicant objects to this Request as vague and ambiguous with respect to the meaning

and scope of “involved in the operations” and “healthcare industry.” Applicant also objects to

this Request as compound because it seeks information about Applicant or Applicant’s agents.

Pursuant to Fed. R. Civ. P. 36, each matter must be separately stated. As a result, this Request is


in geographic scope or time. Applicant further objects to this Request because it is not relevant



REQUEST NO. 29

Admit that Applicant may invest in companies that compete directly or indirectly with Opposer.



because it does not identify which companies Opposer deems to be its competitors and even on

its face encompasses more than one company. Although the subject of disagreement between

the parties, Opposer has argued that Applicant and Opposer are competitors (Dkt. #19 at 12),

19

whereas Opposer’s Form 10-K states that Opposer competes with large global pharmaceutical

and biotechnology companies, specialized pharmaceutical firms, and generic drug

manufacturers. In addition, this Request is vague and ambiguous with respect to the meaning of

“directly” or “indirectly.” Applicant also objects to this Request as compound. Pursuant to Fed.

R. Civ. P. 36, each matter must be separately stated. Applicant further objects to this Request

because it is not limited in geographic scope or time and because it is not relevant to the claims

or defenses in these proceedings.


REQUEST NO. 30

Admit that Applicant may invest in companies that provide goods or services that are related to

the goods or services provided by Opposer.



because it does not identify Opposer’s goods or services and even on its face encompasses more

than one good or service. Applicant also objects to this Request as vague, ambiguous, and

overbroad because it is unclear what the meaning and scope of “related to” is in this Request.

Applicant also objects to this Request because it assumes facts that do not exist and it is disputed

that Opposer provides any services to others. Applicant also objects to this Request as

compound. Pursuant to Fed. R. Civ. P. 36, each matter must be separately stated. Applicant

further objects to this Request because it is not limited in geographic scope or time and because

it is not relevant to the claims or defenses in these proceedings.





Supporting Exhibits

EXHIBIT 11

1



P.O. Box 1451



EJW/lw




v.

Gilead Capital LP

APPLICANT’S RESPONSES AND OBJECTIONS TO

OPPOSER’S FIRST SET OF INTERROGATORIES

Pursuant to Rule 33 of the Federal Rules of Civil Procedure and Rules 2.116 and 2.120 of

the Trademark Rules of Practice, Applicant Gilead Capital LP (“Applicant” or “Gilead Capital”),

by and through its attorneys, subject to the objections set forth herein, respond to Opposer Gilead

Sciences, Inc.’s First Set of Interrogatories (“Interrogatories”) as follows:

GENERAL RESPONSES

1. Applicant’s responses and objections to the Interrogatories are based on







2







3. Any dates provided in these responses are on or about the dates identified.




5. Applicant’s responses and objections to the Interrogatories are subject to any

protective order that may be agreed upon by the parties and/or entered in these proceedings.

GENERAL OBJECTIONS AND QUALIFICATIONS

1. Applicant objects to the Interrogatories to the extent they seek to impose upon


Rules of Civil Procedure as incorporated therein.

2. Applicant objects to the Instructions and Definitions contained in the

Interrogatories on the grounds that they are overbroad, unduly burdensome, excessive in detail,

and seek information that is not reasonably calculated to lead to the discovery of admissible

evidence.

3. Applicant objects to each Interrogatory to the extent that it seeks information that

is not within Applicant’s knowledge, possession, custody, or control.

3

4. Applicant objects to each Interrogatory to the extent it seeks information that is

protected from disclosure by the attorney-client privilege, work product immunity or any other

privilege or immunity against disclosure.


is neither material nor necessary to the prosecution or defense of these proceedings.

6. Applicant objects to each Interrogatory to the extent that it is vague, ambiguous,

lacking in specificity, or otherwise incomprehensible or inscrutable.

7. Applicant objects to each Interrogatory to the extent that it seeks a response that is

duplicative of responses to one or more of the other Interrogatories.

8. Applicant objects to each Interrogatory to the extent that it seeks the disclosure of

information of a confidential and/or proprietary nature.


is publicly-available or otherwise equally or more available to Opposer.

10. Applicant objects to each Interrogatory as vague, ambiguous, overbroad, unduly

burdensome, and not reasonably calculated to lead to the discovery of admissible evidence, to the

extent that it is not geographically limited. The Trademark Trial and Appeal Board is

empowered to determine only the right to register a trademark in the United States. See TBMP

§102.01. Applicant will not provide responses regarding or related to non-U.S. persons or non-

U.S. activities.

11. Applicant objects to each Interrogatory as vague, ambiguous, overbroad, unduly

burdensome, and not reasonably calculated to lead to the discovery of admissible evidence, to the

extent that it is not limited in time. Applicant will construe the relevant time period for each

Interrogatory as January 15, 2016, the date of first use listed in Gilead Capital’s Application

4

Serial No. 87/048887 and Application Serial No. 87/048941, through March 8, 2017, the date

when Opposer presumably had a reasonable basis for filing its Notice of Opposition sufficient to

comply with Fed. R. Civ. P. 11. (“Relevant Time Period”). Applicant will respond with

information within the Relevant Time Period.

12. Applicant objects to the Instruction that the Interrogatories seek answers as of the

date of the Interrogatories. Pursuant to Fed. R. Civ. P. 11, by presenting Opposer’s Notice of

Opposition, dated March 8, 2017, Opposer’s counsel, Lisa Greenwald-Swire of Fish &

Richardson P.C., certified that to the best of her knowledge, information, and belief, formed after

an inquiry reasonable under the circumstances, that the factual contentions have evidentiary

support. Opposer’s counsel either had a reasonable basis for filing the Oppositions on March 8,

2017, or she did not. Opposer is not permitted to file Opposition proceedings without a

reasonable basis, with the hope of uncovering information through a fishing expedition.

Furthermore, information after the date the Opposition proceedings commenced, which are

relevant to the claims or defenses in these proceedings, are most likely protected from disclosure

by attorney work product immunity. Applicant’s responses will be as of March 8, 2017.

13. For purposes of the Interrogatories, Opposer has adopted the definitions set forth

in Opposer’s First Set of Requests for the Production of Documents (“Document Requests”).

Applicant incorporates by reference each of its general and specific objections to the Definitions,

including how Applicant will construe certain terms, as set forth in Applicant’s Responses and

Objections to Opposer’s First Set of Requests for the Production of Documents.

14. Applicant objects to each Interrogatory to the extent that it seeks any relevant

documents and directs Opposer to the documents produced by Applicant in response to

Opposer’s Document Requests.

5

15. The General Objections set forth above are incorporated into each response

below. Applicant will also state other Specific Objections were appropriate. By setting forth

such Specific Objections, Applicant does not intend to limit, restrict, or waive any of the General

Objections set forth above. By setting forth specific responses, Applicant is not agreeing to

Opposer’s Instructions of Definitions and is not conceding the relevance of information provided

in a response. To the extent that Applicant responds to an Interrogatory, the General and/or

Specific Objections are not waived by such response. In addition, the inadvertent disclosure of

privileged information or release of privileged documents shall not constitute a waiver of any

applicable privilege.

16. Subject to and without waiver of the foregoing General Objections, and within the

limits of the Specific Objections set forth below in response to the particular Interrogatories,

Applicant responds as follows:


INTERROGATORY NO. 1

Identify any Person with information regarding Applicant’s Corporate Structure.



burdensome to require the identification of “any” Person, which Opposer instructs as meaning

“all” and “each,” given the limited issues in these proceedings. Applicant also objects to this

Interrogatory because it purports to require information that is not in Applicant’s possession,

custody, or control, such as the identities of persons at government agencies who may have

information regarding Applicant’s structure. Applicant objects to this Interrogatory and the

definition of “Corporate Structure” as vague, ambiguous, overbroad, unduly burdensome, and

6

not reasonably calculated to lead to the discovery of admissible evidence, including because

Applicant is not a corporation and Applicant’s formation, organization, ownership,

capitalization, management, hierarchy, or operational oversight are not relevant to the claims or

defenses. Subject to, and without waiver of, the foregoing General and Specific Objections,


The persons most knowledgeable about Gilead Capital’s organizational structure are

Jeffrey A. Strong, Justin C. Kane, and Kanchana Wangkeo Leung.

INTERROGATORY NO. 2

Identify any Person with any involvement in the Adoption of Applicant’s Marks.




“all” and “each,” given the limited issues in these proceedings. Applicant also objects to this

Interrogatory because it purports to require information that is not in Applicant’s possession,

custody, or control, such as the identities of persons at government agencies who may have

information regarding investigations or clearance analyses conducted on the marks. Applicant

also objects to the definition of “Adoption” as vague, ambiguous, unduly burdensome, not

reasonably calculated to lead to the discovery of admissible evidence, and seeking information

that is protected by attorney-client privilege, work product immunity, or any other privilege or

immunity against disclosure. Subject to, and without waiver, of the foregoing General and

Specific Objections, Applicant responds as follows:

Jeffrey A. Strong was involved in the selection of Applicant’s Marks. Kanchana

Wangkeo Leung provided legal advice regarding Applicant’s Marks.

7

INTERROGATORY NO. 3

Describe fully the factors considered by Applicant in deciding to use the word GILEAD within

Applicant’s Marks.


Applicant objects to this Interrogatory as overbroad, unduly burdensome, and not

reasonably calculated to lead to the discovery of admissible evidence. Applicant objects to this

Interrogatory as vague and ambiguous with respect to the meaning of “factors considered”

because it is could refer to any idea without regard to whether Applicant’s representatives gave it

meaningful thought or analysis. Applicant also objects to the Interrogatory as seeking

information that is protected by attorney-client privilege, work product immunity, or any other

privilege or immunity from disclosure. Subject to, and without waiver of, the foregoing General

and Specific Objections, Applicant responds as follows:

Jeffrey A. Strong named Applicant “Gilead Capital LP” and decided to use the word

GILEAD in Applicant’s Marks to honor his family’s farming roots in Gilead, Nebraska. Gilead

is an agricultural village located on the east side of Thayer County, Nebraska, on Highway 136.

Mr. Strong’s mother was raised on the Husa Farm, where the family grew corn, wheat, and milo,

and raised cattle. The farm has been in the family for 125 years and currently comprises 9

parcels in Gilead, Nebraska.

When Mr. Strong decided to start his own investment management firm in New York, he

paid homage to his roots by naming it after the site of the family farm. Mr. Strong admired his

grandfather, Frank Husa (“Grandpa Frank”), and the values that he passed down to his family,

including but not limited to, independent thinking, hard work, and investing for the long-term.

Among Mr. Strong’s favorite stories is the tale of how Grandpa Frank had avoided the perils of

the 1929 stock market crash by investing his savings in land in Gilead. The values espoused by

8

Grandpa Frank form the foundation of Gilead Capital’s Leadership Investing investment

strategy.

INTERROGATORY NO. 4

Describe fully any Analysis Applicant undertook to determine whether Applicant’s Marks were

available for use as trademarks in the United States.



burdensome to require information regarding “any” Analysis, which Opposer instructs as

meaning “all” and “each,” given the limited issues in these proceedings. Applicant also objects

to the definition of “Analysis” as vague, ambiguous, unduly burdensome, not reasonably

calculated to lead to the discovery of admissible evidence, and seeking information that is


immunity against disclosure. Not only does the definition require Applicant to speculate as to

the kinds of activities an unidentified trademark attorney may undertake, it specifically includes

legal opinions. Subject to, and without waiver, of the foregoing General and Specific


To the extent there are any relevant, non-privileged documents responsive to this request

in Applicant’s possession, custody, or control, Applicant will produce them pursuant to Fed. R.

Civ. P. 33(d).

INTERROGATORY NO. 5

For any Analysis described in response to Interrogatory No. 4, identify the Person(s) most

knowledgeable about such analysis.

9



burdensome to require information regarding “any” Analysis, which Opposer instructs as



calculated to lead to the discovery of admissible evidence, and seeking information that is


immunity against disclosure. Not only does the definition require Applicant to speculate as to

the kinds of activities an unidentified trademark attorney may undertake, it specifically includes

legal opinions. Subject to, and without waiver of, the foregoing General and Specific


Kanchana Wangkeo Leung, Esq.

INTERROGATORY NO. 6

Identify any Person to whom Applicant has marketed, offered, or rendered each of the services

described as Applicant’s Services.




“all” and “each,” given the limited issues in these proceedings. Applicant objects to this

Interrogatory as vague and ambiguous with respect to the meaning of the terms “marketed,”

“offered,” or “rendered.” Applicant objects to this Interrogatory as compound. Applicant also

objects to this Interrogatory because it is not limited in geographic scope or time. The

Trademark Trial and Appeal Board is empowered to determine only the right to register a

trademark in the United States. See TBMP §102.01. Applicant will not provide information

10

related to non-U.S. persons or non-U.S. activities. Furthermore, Applicant will not provide

information outside of the Relevant Time Period. Applicant further objects to this Interrogatory

because certain information regarding its clients, including identities, are subject to

confidentiality provisions and may not be disclosed under these circumstances. Applicant

objects to this Interrogatory as seeking information that is protected by the attorney-client

privilege, work product immunity, or other privilege or immunity from disclosure. Subject to,

and without waiver of, the foregoing General and Specific Objections, Applicant responds as

follows:

Applicant will produce relevant, non-privileged documents under Federal Rule of Civil

Procedure 33(d) from which Applicant’s pool of actual and potential clients may be ascertained.

INTERROGATORY NO. 7

Describe in detail any Marketing Activities Applicant undertakes for Applicant’s Services.




“all” and “each,” given the limited issues in these proceedings. Applicant also objects to the

definition of “Marketing Activities” as vague, ambiguous, overbroad, unduly burdensome, and

not reasonably calculated to lead to the discovery of admissible evidence, including because it

calls for “anything Applicant has done” and is not limited in geographic scope or time. The




11

information outside of the Relevant Time Period. Subject to, and without waiver of, the

foregoing General and Specific Objections, Applicant responds as follows:

Applicant primarily relies on its partners’ personal and professional networks for

introductions to potential clients. Applicant’s personnel engage directly with the potential

clients, including through in-person meetings, telephone calls, and/or providing written

information regarding Applicant’s services. Depending on the type of information and level of

detail requested or provided, Applicant and the potential client may enter into confidentiality

agreements restricting disclosure and use of Applicant’s information. In addition, Applicant has

used the capital introduction services of a brokerage firm to meet potential clients.

INTERROGATORY NO. 8

Identify any Conferences Applicant has attended or sponsored, or which Applicant intends to

attend or sponsor, including the year of the Conference.



burdensome to require the identification of “any” Conference, which Opposer instructs as

meaning “all” and “each,” given the limited issues in these proceedings. Applicant objects to the

definition of “Conference” as vague, ambiguous, overbroad, unduly burdensome, and not

reasonably calculated to lead to the discovery of admissible evidence as it would encompass

virtually all events, meetings, and conferences that have no relevance to the claims or defenses in

these proceedings. Applicant objects to this Interrogatory as compound. Applicant further

objects to this Interrogatory because it is not limited in geographic scope or time. The




12



Applicant has not sponsored any conferences. To the extent they exist, Applicant will

produce relevant, non-privileged documents under Federal Rule of Civil Procedure 33(d) from

which information regarding capital introduction conferences attended by Applicant may be

ascertained.

INTERROGATORY NO. 9

Identify each Person that Applicant has researched as a potential target for investment.



burdensome to require the production of “each” Person, which Opposer instructs as meaning

“all” and “any,” given the limited issues in these proceedings. Applicant further objects to this

Interrogatory because it is not limited in geographic scope or time. The Trademark Trial and



or non-U.S. activities. Furthermore, Applicant will not provide information outside of the

Relevant Time Period. Applicant objects to the Interrogatory as vague, ambiguous, overbroad,

unduly burdensome, and not reasonably calculated to lead to the discovery of admissible

evidence because it is unclear what “target for investment” means in the context of these

trademark opposition proceedings, and Applicant’s investment decisions, which are confidential,

as opposed to its investment advisory services, are not relevant, material, or necessary to the

prosecution or defense of these proceedings.

13


Identify each Person in which Applicant has invested in the course of rendering Applicant’s

Services, including the date and dollar amount of the investment.



burdensome to require the production of “each” Person, which Opposer instructs as meaning

“all” and “any,” given the limited issues in these proceedings. Applicant further objects to this

Interrogatory because it is not limited in geographic scope or time. The Trademark Trial and




Relevant Time Period. Applicant objects to this Interrogatory to the extent information is

publicly available or equally available to Opposer. Applicant objects to the Interrogatory as

vague, ambiguous, overbroad, unduly burdensome, and not reasonably calculated to lead to the

discovery of admissible evidence because Applicant’s investment decisions, which are

confidential, as opposed to its investment advisory services, are not relevant, material, or

necessary to the prosecution or defense of these proceedings.


Identify the percentage division of each particular investment within the Applicant’s investment

portfolio (e.g., Acme Company is 50% of the company’s investment portfolio) per year since

Applicant’s formation.


Applicant objects to this Interrogatory as vague, ambiguous, overbroad, unduly


because, among other things, the holdings and corresponding percentages of holdings in an

14

investment portfolio may change on a daily, weekly, or monthly basis. Applicant further objects

to this Interrogatory because it is not limited in geographic scope or time. The Trademark Trial

and Appeal Board is empowered to determine only the right to register a trademark in the United



Relevant Time Period. Applicant objects to this Interrogatory to the extent information is

publicly available or equally available to Opposer. Applicant objects to the Interrogatory as


discovery of admissible evidence because Applicant’s investment decisions, which are




Describe the facts and circumstances under which Applicant first became aware of Opposer,

including the date.


Applicant objects to this Interrogatory as vague and ambiguous with respect to the

meanings of “facts” and “circumstances” and whether awareness encompasses knowledge

beyond knowing that Opposer exists. Applicant also objects to this Interrogatory as not

reasonably capable of response because Applicant is a professional investment management firm

that invests in (and therefore follows) the public markets, and its personnel cannot be expected to

recall when they became aware of each publicly-traded company. Subject to, and without waiver

of, the foregoing General and Specific Objections, Applicant responds as follows:

15

Applicant is unable to respond to this Interrogatory as posed. Applicant was founded by

professional investors who were and are aware of the existence of numerous publicly-traded

companies, including Opposer.


Describe in detail the Persons to whom Applicant’s Services are marketed, promoted, advertised,

and rendered under Applicant’s Marks.



meaning of the terms “marketed,” “promoted,” “advertised,” and how they are used differently

from one another, and the meaning of the term “rendered.” Applicant objects to this

Interrogatory as compound. Applicant also objects to this Interrogatory because it is not limited

in geographic scope or time. The Trademark Trial and Appeal Board is empowered to determine

only the right to register a trademark in the United States. See TBMP §102.01. Applicant will

not provide information related to non-U.S. persons or non-U.S. activities. Furthermore,

Applicant will not provide information outside of the Relevant Time Period. Applicant further

objects to this Interrogatory because certain information regarding its clients, including

identities, are subject to confidentiality provisions and may not be disclosed under these

circumstances. Applicant objects to this Interrogatory as seeking information that is protected by

the attorney-client privilege, work product immunity, or other privilege or immunity from

disclosure. Applicant further objects to this Interrogatory as duplicative of Interrogatory No. 6.

Subject to, and without waiver of, the foregoing General and Specific Objections, Applicant

responds as follows:

Applicant incorporates its responses and objections to Interrogatory No. 6.

16


Describe in detail the basis for your allegation that “Applicant and Opposer rely on dissimilar

trade channels that do not overlap” in your Answer dated September 26, 2017 [Dkt. 15], and

identify all documents you contend support this allegation.


Applicant objects to this Interrogatory as purporting to impose obligations upon

Applicant beyond those of the Trademark Rules of Practice and the Federal Rules of Civil

Procedure. Applicant objects to this Interrogatory as seeking information that is publicly

available or equally or more readily available to Opposer. Applicant also objects to this

Interrogatory as seeking information that is protected from disclosure by the attorney-client

privilege, work product immunity, or any other privilege or immunity from disclosure.

Applicant further objects to this Interrogatory as unduly burdensome in requesting the

identification of “all documents” that support the statement. Subject to, and without waiver of,

the foregoing General and Specific Objections, Applicant responds as follows:

Applicant relies on Opposer’s own public filings describing Opposer’s trade channels.

Applicant will also produce relevant, non-privileged documents under Federal Rule of Civil

Procedure 33(d) from which relevant information may be ascertained.


State the date when Applicant first rendered each of the services recited in Applicant’s Services

to a consumer.



meaning of “rendered” and “consumer” because, among other reasons, it is unclear whether it is

intended to refer to investors, including retail investors. Applicant objects to this Interrogatory

as compound. The services cited in Applicant’s Services incorporate numerous activities,

17

including but not limited to, researching potential investments, financial modeling, asset

allocation strategies, trading, portfolio management, and implementing the infrastructure and

relationships needed for each of the foregoing. Applicant also objects to this Interrogatory

because it is not limited in geographic scope. The Trademark Trial and Appeal Board is

empowered to determine only the right to register a trademark in the United States. See TBMP

§102.01. Applicant will not provide information related to non-U.S. persons or non-U.S.

activities. Subject to, and without waiver of, the foregoing General and Specific Objections,




For each date recited in response to the above Interrogatory, identify the Person to whom

Applicant’s Services were rendered.



meaning of “rendered” and whether Opposer is equating such term with use of a service mark in

U.S. commerce. Applicant objects to this Interrogatory as vague and ambiguous with respect to

the term “Applicant’s Services” because it is unclear whether the Interrogatory is seeking

information regarding such services generally or services by Applicant specifically. Applicant

also objects to this Interrogatory because it is not limited in geographic scope. The Trademark

Trial and Appeal Board is empowered to determine only the right to register a trademark in the

United States. See TBMP §102.01. Applicant will not provide information related to non-U.S.

persons or non-U.S. activities. Applicant further objects to this Interrogatory because certain

information regarding its clients, including identities, are subject to confidentiality provisions

and may not be disclosed under these circumstances. Applicant further objects to this

18

Interrogatory as duplicative of Interrogatory No. 6 and Interrogatory No. 13. Subject to, and

without waiver of, the foregoing General and Specific Objections, Applicant responds as

follows:

Applicant incorporates its responses and objections to Interrogatory No. 6. and

Interrogatory No. 13.


Describe in detail the trade channels for Applicant’s Services.



meaning of the term “Applicant’s Services” because it is unclear whether the Interrogatory is

seeking information regarding such services generally or services by Applicant specifically.

Applicant will construe the term as meaning the former. Applicant also objects to this

Interrogatory as overbroad and unduly burdensome in requiring a description in detail.

Applicant also objects to this Interrogatory because it is not limited in geographic scope or time.

The Trademark Trial and Appeal Board is empowered to determine only the right to register a





The trade channels for Applicants’ Services are limited by the type of investors who are

potential clients of Applicant—namely, investors who are “accredited investors,” “qualified

clients,” and/or “qualified purchasers” within the meaning of the Securities Act of 1933, the

Investment Advisers Act of 1940, and the Investment Company Act of 1940, as applicable. Due

19

to minimum asset requirements or other requirements for these types of investors, the pool of

potential investors includes institutional investors, such as foundations, endowments, charitable

organizations, pension and employee benefit plans, insurance companies, sovereign wealth

funds, funds of funds, family offices, and certain high-net-worth individuals. The trade channels

to reach these types of investors include internal staff of the investment manager engaging with

potential investors (as a result of prior contacts of investment manager personnel or referrals

from other investors, private banks, or professional references), fund partners marketing the

fund, broker-dealers being engaged as marketers, capital introduction teams at prime brokers,

placement agents, and consultants.


Identify any Persons who had any involvement in the preparation of Applicant’s discovery

requests or the responses to Opposer’s Discovery Requests.


Applicant objects to Interrogatory as vague, ambiguous, and overbroad because the terms

“involvement” and “preparation” are undefined and could be construed to seek considerably

more information beyond the drafting of the written discovery requests or responses. Applicant

objects to this Interrogatory to the extent it calls for information protected by the attorney-client

privilege, work product immunity, or any other privilege or immunity from disclosure. Subject

to, and without waiver, of the foregoing General and Specific Objections, Applicant responds as

follows:

Kanchana Wangkeo Leung


Identify any Licenses Applicant obtained from any governmental or non-governmental entities

that relate to Applicant’s Services, including the date on which said License was obtained.

20


Applicant objects to this Interrogatory as vague and ambiguous as to the meaning of

“relate” to with respect to Applicant’s Services. Applicant also objects to the definition of

“License” as vague, ambiguous, overbroad, unduly burdensome, and not reasonably calculated to

lead to the discovery of admissible evidence and is defined to include terms that are not

commonly understood as licenses. Applicant also objects to this Interrogatory because it is not

limited in geographic scope or time. The Trademark Trial and Appeal Board is empowered to

determine only the right to register a trademark in the United States. See TBMP §102.01.

Applicant will not provide information related to non-U.S. persons or non-U.S. activities.

Furthermore, Applicant will not provide information outside of the Relevant Time Period.

Applicant objects to this Interrogatory to the extent it calls for information that is not in

Applicant’s possession, custody, or control. Applicant objects to this Interrogatory to the extent

it calls for the production of documents that are publicly available or equally available to

Opposer. Applicant objects to this Interrogatory as seeking information that is not relevant,

material, or necessary to the prosecution of the claims or defenses in these proceedings. Subject

to, and without waiver of the General and Specific Objections, Applicant responds as follows:



Identify any Agreements related to Applicant’s use of Applicant’s Mark.



burdensome to require information about “any” Agreements, which Opposer instructs as

meaning “all” and “each,” given the limited issues in these proceedings. Applicant objects to the




Supporting Exhibits

EXHIBIT 12

1



P.O. Box 1451



EJW/lw




v.

Gilead Capital LP


OPPOSER’S FIRST SET OF REQUESTS FOR THE PRODUCTION OF DOCUMENTS




Sciences, Inc.’s First Set of Requests for the Production of Documents (“Document Requests”)

as follows:

GENERAL RESPONSES

1. Applicant’s responses and objections to the Document Requests are based on

information presently known to Applicant and/or its attorney. Applicant reserves the right to

supplement, amend, or modify these responses and objections in the event and to the extent

future discovery so justifies. Should Applicant at any time supplement or amend its responses

and/or objections to any Document Request, Applicant reserves the right to assert any available

2

privilege or other protection as to any response that might otherwise be discoverable in

connection with Applicant’s supplementation or amendment.


relevance, materiality, privilege, and admissibility of each response, or any other proper grounds,





3. Applicant expressly reserves the right to rely at any time, including in these or

any other proceedings, on information that is subsequently discovered or was omitted from these


4. These responses and any further responses or information produced therein are

made without any acknowledgement or concession that the information requested is relevant or

material to the subject matter of this action, or is otherwise admissible in these or any other

proceedings.

5. Applicant’s responses and objections to the Document Requests are subject to any


GENERAL OBJECTIONS

1. Applicant objects to the Document Requests to the extent they seek to impose



2. Applicant objects to the Instructions and Definitions contained in the Document

Requests on the grounds that they are overbroad, unduly burdensome, excessive in detail, and

3

seek information that is not reasonably calculated to lead to the discovery of admissible

evidence.

3. Applicant objects to each Document Request to the extent that it seeks


4. Applicant objects to each Document Request to the extent it seeks information





proceedings.

6. Applicant objects to each Document Request to the extent that it is vague,


7. Applicant objects to each Document Request to the extent that it seeks a response

that is duplicative of responses to one or more of the other Document Requests.

8. Applicant objects to each Document Request to the extent that it seeks the




10. Applicant objects to each Document Request to the extent it calls for

electronically-stored information that is not reasonably accessible without undue burden or cost.

11. Applicant objects to the definition of “Applicant,” “You,” and “Your” as


admissible evidence. Gilead Capital is the entity applying for registration of the GILEAD

4

CAPITAL and GILEAD CAPITAL LEADERSHIP INVESTING Marks in Application Serial

Nos. 87/048887 and 87/048941. Gilead Capital will construe “Applicant,” “You,” and “Your”

solely as Gilead Capital and representatives acting on its behalf.


assumes facts not in evidence and erroneous legal conclusions. The word “Gilead” by itself is

not a trademark, and Opposer does not have universal trademark rights in the word “Gilead.”





CAPITAL LEADERSHIP INVESTING Marks, such that Opposer’s Document Requests call for

the production of virtually every email and document ever created by Applicant. For purposes of

the Document Requests, Gilead Capital will construe “Opposer’s Mark” as the three registered

trademarks that are specifically identified in Opposer’s Amended Notices of Opposition as the

basis for the Oppositions: U.S. Registration No. 3604505, U.S. Registration No. 4279898, and

U.S. Registration No. 3251595.

13. Applicant objects to the definition of “Communication” as imposing upon


Rules of Civil Procedure as incorporated therein, including because it purports to call for the

production of oral contacts and oral communications.

14. Applicant objects to the definition of “Identify” as unduly burdensome and

imposing upon Applicant requirements that extend beyond the Trademark Rules of Practice and

the Federal Rules of Civil Procedure. Applicant will produce responsive, non-privileged

5

documents as they are kept in the ordinary course of business and will not create documents to

supply additional information not apparent on the face of the documents.

15. Applicant objects to the definition of “Relating,” “Related,” or “Relates” as


admissible evidence as it would necessitate the production of voluminous documents that are not

relevant or proportional to the needs of the case.

16. Applicant objects to the definition of “License” as vague, ambiguous, overbroad,


evidence.

17. Applicant objects to the definition of “Adoption” as vague, ambiguous,

overbroad, unduly burdensome, not reasonably calculated to lead to the discovery of admissible

evidence, and calling for the production of documents that are protected by attorney-client

privilege, work product immunity, or any other privilege or immunity against disclosure.

18. Applicant objects to the definition of “Agreements” as vague, ambiguous,


admissible evidence, including as to the scope of “understandings” and “involve.”

19. Applicant objects to the definition of “Analysis” as vague, ambiguous, overbroad,

unduly burdensome, not reasonably calculated to lead to the discovery of admissible evidence,

and calling for the production of documents that are protected by attorney-client privilege, work

product immunity, or any other privilege or immunity against disclosure. Not only does the

definition require Applicant to speculate as to the kinds of activities an unidentified trademark

attorney may undertake, it specifically includes legal opinions. Applicant will not produce

privileged documents.

6

20. Applicant objects to the definition of “Confusion” to the extent it calls for

information that is not relevant to Count I of the Oppositions. Applicant will construe

“Confusion” to mean confusion as used in 15 U.S.C. §1052(d) as a basis for denying registration.

21. Applicant objects to the definition of “Conference” as vague, ambiguous,


admissible evidence.

22. Applicant objects to the definition of “Corporate Structure” as vague, ambiguous,


admissible evidence, including because Applicant is not a corporation and Applicant’s

formation, organization, ownership, capitalization, management, hierarchy, or operational

oversight are not relevant to the claims or defenses.

23. Applicant objects to the definition of “Marketing Activities” as vague,

ambiguous, overbroad, unduly burdensome, and not reasonably calculated to lead to the

discovery of admissible evidence, including because it calls for “anything Applicant has done”

and is not limited in geographic scope or time.

24. Applicant objects to each Document Request as vague, ambiguous, overbroad,


evidence, to the extent that it is not geographically limited. The Trademark Trial and Appeal

Board is empowered to determine only the right to register a trademark in the United States. See

TBMP §102.01. Applicant will not produce documents related to non-U.S. persons or non-U.S.

activities.

25. Applicant objects to each Document Request as vague, ambiguous, overbroad,


7

evidence, to the extent that it is not limited in time. Applicant will construe the relevant time

period for each Document Request as January 15, 2016, the date of first use listed in Gilead

Capital’s Application Serial No. 87/048887 and Application Serial No. 87/048941, through

March 8, 2017, the date when Opposer presumably had a reasonable basis for filing its Notice of

Opposition sufficient to comply with Fed. R. Civ. P. 11. (“Relevant Time Period”). Pursuant to

Fed. R. Civ. P. 11, by presenting Opposer’s Notice of Opposition, dated March 8, 2017,

Opposer’s counsel, Lisa Greenwald-Swire of Fish & Richardson P.C., certified that to the best of

her knowledge, information, and belief, formed after an inquiry reasonable under the

circumstances, that the factual contentions have evidentiary support. Opposer’s counsel either

had a reasonable basis for filing the Oppositions on March 8, 2017, or she did not. Opposer is

not permitted to file Opposition proceedings without a reasonable basis, with the hope of

uncovering information through a fishing expedition. Furthermore, information after the date the

Opposition proceedings commenced, which are relevant to the claims or defenses in these

proceedings, are most likely protected from disclosure by attorney work product immunity.

Applicant will conduct a reasonable search of electronically stored information within the

Relevant Time Period.


below. Applicant will also state other specific objections where appropriate. By setting forth

such specific objections, Applicant does not intend to limit, restrict or waive any of the General

Objections set forth above. By setting specific responses, Applicant is not agreeing to Opposer’s

Instructions and Definitions and is not conceding the relevance, materiality or admissibility of

information provided in a response. To the extent that Applicant responds to a Document

Request, the General Objections and/or specific objections are not waived by such response. In

8

addition, the inadvertent disclosure of privileged information or release of privileged documents

shall not constitute a waiver of any applicable privilege.


limits of the Specific Objections set forth below in response to particular Document Requests,



REQUEST NO. 1

Any Documents Related to Applicant’s Adoption of Applicant’s Marks.


Applicant objects to this Document Request on the grounds that it is overbroad and

unduly burdensome to require the production of “any” Documents, which Opposer instructs as


to the definition of “Adoption” as vague, ambiguous, unduly burdensome, not reasonably

calculated to lead to the discovery of admissible evidence, and calling for the production of

documents that are protected by attorney-client privilege, work product immunity, or any other

privilege or immunity against disclosure. Subject to, and without waiver, of the foregoing

General and Specific Objections, Applicant will produce relevant, non-privileged documents

responsive to this Document Request, if any.

REQUEST NO. 2

Any Documents sufficient to identify the Persons involved in the Adoption of each of

Applicant’s Marks.




9


to the definition of “Adoption” as vague, ambiguous, unduly burdensome, not reasonably

calculated to lead to the discovery of admissible evidence, and calling for the production of

documents that are protected by attorney-client privilege, work product immunity, or any other

privilege or immunity against disclosure. Subject to, and without waiver, of the foregoing



REQUEST NO. 3

Any Documents Related to any Analysis Applicant conducted on Applicant’s Marks.






calculated to lead to the discovery of admissible evidence, and improperly seeking the

production of documents that are protected by attorney-client privilege, work product immunity,

or any other privilege or immunity against disclosure. Not only does the definition require

Applicant to speculate as to the kinds of activities an unidentified trademark attorney may

undertake, it specifically includes legal opinions. Subject to, and without waiver of, the

foregoing General and Specific Objections, Applicant will produce relevant, non-privileged

documents responsive to this Document Request, if any.

REQUEST NO. 4

Any Documents that Relate to Opposer or Opposer’s Marks, other than pleadings in this

Opposition and correspondence to or from Opposer’s counsel.

10





to this Document Request as unduly burdensome and not reasonably calculated to lead to the

discovery of admissible evidence insofar as it calls for all documents relating to Opposer, where

Opposer is a publicly-traded company whose name or ticker occasionally appears on mass

communications to investment advisers, such as Applicant. Applicant will not search for, nor

produce, such mass communications, such as news blasts and unsolicited investment updates

where Opposer or Opposer’s ticker is mentioned among numerous companies.

Applicant further objects to the definition of “Opposer’s Mark” because the definition

assumes facts not that do not exist and a mistaken legal conclusion. The word “Gilead” by itself

is not a trademark, and Opposer does not have universal trademark rights in the word “Gilead.”





CAPITAL LEADERSHIP INVESTING Marks, such that Opposer’s Document Request calls for

the production of virtually every email and document ever created by Applicant. Gilead Capital

will construe “Opposer’s Mark” as the three registered trademarks that are specifically identified

in Opposer’s Amended Notices of Opposition as the basis for the Oppositions: U.S. Registration

No. 3604505, U.S. Registration No. 4279898, and U.S. Registration No. 3251595.

11

Subject to, and without waiver of, the foregoing General and Specific Objections,

Applicant will produce relevant, non-privileged documents relating to Opposer’s marks as

reflected in U.S. Registration No. 3604505, U.S. Registration No. 4279898, and U.S.

Registration No. 3251595, if any.

REQUEST NO. 5

Any Documents Related to any instances of Confusion between Applicant and Opposer (or the

Parties’ respective trademarks).





to the definition of “Confusion” to the extent it calls for information that is not relevant to Count

I of the Oppositions. Applicant will construe “Confusion” to mean confusion as used in 15

U.S.C. §1052(d) as a basis for denying registration. Applicant objects to this Document Request

because it is not limited in geographic scope or time. Applicant further objects to the Document

Requests as vague and ambiguous as the “Parties’ respective trademarks” are undefined.

Applicant will construe this Document Request as calling for documents relating to instances of

Confusion between any of Applicant’s Marks, on the one hand, and any of Opposer’s marks as


Registration No. 3251595, on the other hand. Subject to, and without waiver of, the foregoing



12

REQUEST NO. 6

Any Documents related to any statements by a third party regarding the relationship between

Applicant and Opposer.



unduly burdensome to require the production of “any” Documents related to “any” statements,

which Opposer instructs as meaning “all” and “each,” given the limited issues in these

proceedings. Applicant objects to this Document Request because it is not limited in geographic

scope or time. Applicant also objects to the Document Request as vague and ambiguous as to

the meaning of “relationship between Applicant and Opposer,” which also presupposes some

type of relationship to begin with. Subject to, and without waiver of, the foregoing General and

Specific Objections, Applicant will produce relevant, non-privileged documents responsive to

this Document Request, if any.

REQUEST NO. 7

Any Documents sufficient to evidence the date of first use in commerce of Applicant’s Marks for

each of Applicant’s Services.




meaning “all” and “each,” given the limited issues in these proceedings. Applicant objects to

this Document Request because it is not limited in geographic scope. Subject to, and without

waiver of, the foregoing General and Specific Objections, Applicant will produce relevant, non-

privileged documents responsive to this Document Request, if any.

13

REQUEST NO. 8

Any Documents Related to the first customer(s) for each of Applicant’s Services.





to this Document Request as vague and ambiguous as “customer(s)” is undefined, and not

reasonably calculated to lead to the discovery of admissible evidence because all documents

about a given client or “customer” are not relevant to the bases of Opposer’s claims of likelihood

of confusion and/or false suggestion of connection. Applicant further objects to this Document

Request because certain information regarding its clients, including identities, are subject to

confidentiality provisions and may not be disclosed under these circumstances. Applicant

objects to this Document Request as calling for information that is protected by the attorney-

client privilege, work product immunity, or other privilege or immunity from disclosure. Subject

to, and without waiver of, the foregoing General and Specific Objections, Applicant will produce

relevant, non-privileged documents sufficient to identify the pool of actual and potential clients

to which Applicant’s Services were offered or provided.

REQUEST NO. 9

Any Documents Related to Applicant’s ongoing use in commerce of Applicant’s Marks in

connection with Applicant’s Services.





14

this Document Request because it is not limited in geographic scope or time. Subject to, and

without waiver of, the foregoing General and Specific Objections, Applicant will produce

relevant, non-privileged documents responsive to this Document Request, if any.

REQUEST NO. 10

Any Documents Related to any Marketing Activities Applicant has undertaken or intends to

undertake for Applicant’s Services.





to the definition of “Marketing Activities” as vague, ambiguous, overbroad, unduly burdensome,

and not reasonably calculated to lead to the discovery of admissible evidence, including because

it calls for “anything Applicant has done” and is not limited in geographic scope or time. Subject

to, and without waiver of, the foregoing General and Specific Objections, Applicant will produce


REQUEST NO. 11

Any Documents Related to any Communications with third parties regarding the advertising or

promotion of Applicant’s Services.





this Document Request because it is not limited in geographic scope or time. Applicant also

objects to the definition of “Communication” as imposing upon Applicant requirements that

15

extend beyond the Trademark Rules of Practice and the Federal Rules of Civil Procedure as

incorporated therein, including because it purports to call for the production of oral contacts and

oral communications. Applicant further objects to this Document Request as vague and

ambiguous as it is unclear what how “promoting” would differ from “advertising.” Subject to,

and without waiver of, the foregoing General and Specific Objections, Applicant will produce


REQUEST NO. 12

Any Documents sufficient to identify the customer base for Applicant’s Services.





to this Document Request because it is not limited in geographic scope or time. Applicant

further objects to this Document Request as vague and ambiguous, as it is unclear whether

“customer base” refers to current customers, possible customers, demographics, or identities.

Applicant objects to this Document Request because certain information regarding its clients,

including identities, are subject to confidentiality provisions and may not be disclosed under

these circumstances. Applicant objects to this Document Request as calling for information that

is protected by the attorney-client privilege, work product immunity, or other privilege or

immunity from disclosure. Subject to, and without waiver of, the foregoing General and Specific

Objections, Applicant will produce relevant, non-privileged documents sufficient to identify the

pool of actual and potential clients to which Applicant’s Services were offered or provided.

16

REQUEST NO. 13

Any Documents that Relate to the channels of trade for Applicant’s Services.





to the definition of “Relate” to as overbroad, unduly burdensome, and not reasonably calculated

to lead to the discovery of admissible evidence as it would necessitate the production of

voluminous documents that are not relevant or proportional to the needs of the case. Applicant

further objects to this Document Request because it is not limited in geographic scope or time.

Subject to, and without waiver of, the foregoing General and Specific Objections, Applicant will


REQUEST NO. 14

Any Documents Related to any companies Applicant has researched as a potential target for

investment.









Applicant objects to this Document Request to the extent information is publicly available or

17

equally available to Opposer. Applicant objects to the Document Request as vague, ambiguous,


admissible evidence because it is unclear what “target for investment” means in the context of

these trademark opposition proceedings, and Applicant’s investment decisions, which are



REQUEST NO. 15

Any Documents Related to any Communications between Applicant and any third parties

Applicant has considered as a target for investment.








objects to the definition of “Communication” as imposing upon Applicant requirements that

extend beyond the Trademark Rules of Practice and the Federal Rules of Civil Procedure as

incorporated therein, including because it purports to call for the production of oral contacts and

oral communications. Applicant further objects to this Document Request because it is not

limited in geographic scope or time. Applicant objects to this Document Request to the extent

information is publicly available or equally available to Opposer. Applicant objects to the

Document Request as vague, ambiguous, overbroad, unduly burdensome, and not reasonably

calculated to lead to the discovery of admissible evidence because it is unclear what “target for

18

investment” means in the context of these trademark opposition proceedings, and Applicant’s

investment decisions, which are confidential, as opposed to its investment advisory services, are

not relevant, material, or necessary to the prosecution or defense of these proceedings.

REQUEST NO. 16

Any Documents sufficient to describe the business Applicant conducts in connection with any of

Applicant’s Services.




meaning “all” and “each,” given the limited issues in these proceedings. Applicant further

objects to this Document Request because it is not limited in geographic scope or time.

Applicant also objects to this Document Request as vague, ambiguous, unintelligible, and

circular because Applicant is in the business of providing investment advisory services so it is

unclear what Opposer is requesting. Applicant further objects to this Document Request on the

ground that it seeks information that is publicly-available or otherwise equally available to

Opposer. Subject to, and without waiver of the General and Specific Objections, Applicant will


REQUEST NO. 17

Any Documents Related to any of Opposer’s Marks, other than pleadings in the Opposition and

correspondence to or from Opposer’s counsel.





19





Applicant objects to the definition of “Opposer’s Mark” because the definition assumes

facts not in evidence and a mistaken legal conclusion. The word “Gilead” by itself is not a

trademark, and Opposer does not have universal trademark rights in the word “Gilead.”





CAPITAL LEADERSHIP INVESTING Marks, such that Opposer’s Document Requests call for

the production of virtually every email and document ever created by Applicant. Gilead Capital



No. 3604505, U.S. Registration No. 4279898, and U.S. Registration No. 3251595. Applicant

also objects to this Document Request as duplicative or cumulative of Document Request No. 4.

Subject to, and without waiver of, the foregoing General and Specific Objections,

Applicant will produce relevant, non-privileged documents relating to Opposer’s marks as


Registration No. 3251595, if any.

REQUEST NO. 18

Any Documents Related to any web pages (including social media) that have been used by or on

behalf of Applicant to promote Applicant’s Services.

20









Applicant further objects that “web pages (including social media)” and “promote” are vague

and ambiguous undefined terms. Applicant objects to this Document Request to the extent it

calls for information that is not in Applicant’s possession, custody, or control. Subject to, and


documents sufficient to identify webpages or social media pages under Applicant’s control,

which were used to identify Applicant and/or its services during the Relevant Time Period, if

any.

REQUEST NO. 19

Any Documents Related to any Conferences Applicant has attended.







21


objects to the definition of “Conference” as vague, ambiguous, overbroad, unduly burdensome,

and not reasonably calculated to lead to the discovery of admissible evidence as it would

encompass virtually all events, meetings, and conferences that have no relevance to the claims or

defenses in these proceedings. Applicant further objects to this Document Request because it is

not limited in geographic scope or time. Subject to, and without waiver of, the foregoing


regarding capital introduction conferences, which representatives of Applicant may have

attended, if any.

REQUEST NO. 20

Any Documents Related to each investment Applicant has made since its formation.









Applicant objects to the Document Request as vague, ambiguous, overbroad, unduly


because Applicant’s investment decisions, which are confidential, as opposed to its investment

22

advisory services, are not relevant, material, or necessary to the prosecution or defense of these

proceedings.

REQUEST NO. 21

Any Documents Related to companies in the healthcare space that Applicant has considered as a

target for investment (including companies in which Applicant did invest, as well as companies

that Applicant merely considered for investment).









Applicant objects to this Document Request to the extent information is publicly available or

equally available to Opposer. Applicant objects to the Document Request as vague, ambiguous,


admissible evidence because it is unclear what “healthcare space” and “target for investment”

mean generally or in the context of these trademark opposition proceedings, and Applicant’s

investment decisions, as opposed to its investment advisory services, are not relevant, material,

or necessary to the prosecution or defense of these proceedings.

REQUEST NO. 22

Any Documents Related to Applicant’s document destruction or retention policies.

23








further objects to this Document Request as calling for the production of documents that are not

relevant to the claims or defenses in these proceedings.

REQUEST NO. 23

Any Documents Related to Applicant’s Corporate Structure.








objects to the definition of “Corporate Structure” as vague, ambiguous, overbroad, unduly

burdensome, and not reasonably calculated to lead to the discovery of admissible evidence,

including because Applicant is not a corporation and Applicant’s formation, organization,

ownership, capitalization, management, hierarchy, or operational oversight are not relevant,

material, or necessary to the prosecution or defense of these proceedings. Applicant further

24

objects to this Document Request as calling for the production of documents that are not relevant


REQUEST NO. 24

Any Documents Related to any investors that have used Applicant’s Services.








also objects to this Document Request because it is not limited in geographic scope or time.

Applicant objects to this Document Request as overbroad and not reasonably calculated to lead

to the discovery of admissible evidence because all documents about a given investor are not

relevant to the bases of Opposer’s claims of likelihood of confusion and/or false suggestion of

connection. Applicant objects to this Document Request because certain information regarding

its clients, including identities, are subject to confidentiality provisions and may not be disclosed

under these circumstances. Applicant objects to this Document Request as calling for

information that is protected by the attorney-client privilege, work product immunity, or other

privilege or immunity from disclosure. Subject to, and without waiver of, the foregoing General

and Specific Objections, Applicant will produce relevant, non-privileged documents sufficient to

identify the pool of actual and potential clients to which Applicant’s Services were offered or

provided.

25

REQUEST NO. 25

Any Documents Applicant has provided to the companies in which it invests that Relate to

Applicant’s role or involvement in those companies.









Applicant objects to the Document Request as the terms “role or involvement” are undefined,

vague and ambiguous in the context of these trademark opposition proceedings. Applicant

objects to this Document Request as not reasonably calculated to lead to the discovery of

admissible evidence because the companies in which Applicant invests client assets are not

clients or potential clients, and documents provided to such parties are not material, relevant, or


REQUEST NO. 26

Any Documents, other than those produced in response to any of the foregoing requests, which

Relate to the use of Applicant’s Marks by any third parties.





26





Applicant objects to this Document Request to the extent it calls for information that is not in

Applicant’s possession, custody, or control. Subject to, and without waiver of the General and



REQUEST NO. 27

Any Documents Related to any Licenses Applicant obtained from any governmental or non-

governmental entities that Relate to Applicant’s Services.








objects to the definition of “License” as vague, ambiguous, overbroad, unduly burdensome, and

not reasonably calculated to lead to the discovery of admissible evidence and is defined to

include terms that are not commonly understood as licenses. Applicant further objects to this

Document Request because it is not limited in geographic scope or time. Applicant objects to

this Document Request to the extent it calls for information that is not in Applicant’s possession,

custody, or control. Applicant objects to this Document Request to the extent it calls for the

27

production of documents that are publicly available or equally available to Opposer. Applicant

objects to this Interrogatory as seeking information that is not relevant, material, or necessary to

the prosecution of the claims or defenses in these proceedings. Subject to, and without waiver of

the General and Specific Objections, Applicant will produce relevant, non-privileged documents


REQUEST NO. 28

Any Documents, other than those produced in response to any of the foregoing requests,

identified in Your Initial Disclosures.





to this Document Request to the extent it calls for the production of documents that are publicly

available or equally or more available to Opposer. Subject to, and without waiver of, the

foregoing General and Specific Objections, Applicant will product relevant, non-privileged


REQUEST NO. 29

Any Documents, other than those produced in response to any of the foregoing requests, upon

which Applicant intends to rely in connection with the Opposition.






28

available or equally or more available to Opposer. Subject to, and without waiver of, the

foregoing General and Specific Objections, Applicant will product relevant, non-privileged


REQUEST NO. 30

Any Documents, other than those produced in response to the any of the foregoing requests, that

Applicant reviewed, relied upon, or identified in response to Opposer’s discovery requests.






available or equally or more available to Opposer. Applicant further objects to this request

because it calls for the production of documents that are protected by attorney-client privilege,

work product immunity, or other privilege or immunity from disclosure. Subject to, and without

waiver of, the foregoing General and Specific Objections, Applicant will product relevant, non-


REQUEST NO. 31

Any Documents that support any denials You asserted in response to Opposer’s Requests for

Admission.









Supporting Exhibits

EXHIBIT 13

1



P.O. Box 1451



EJW/lw




v.

Gilead Capital LP

APPLICANT’S RESPONSES AND OBJECTIONS TO OPPOSER’S

SECOND SET OF REQUESTS FOR ADMISSION TO APPLICANT

Pursuant to Rules 26 and 36 of the Federal Rules of Civil Procedure and Rules 2.116 and

2.120 of the Trademark Rules of Practice, Applicant Gilead Capital LP (“Applicant”) or (“Gilead

Capital”), by and through its attorneys, subject to the objections set forth herein, respond to

Opposer’s Requests for Admission to Applicant (“Requests for Admission” or “Requests”), as

follows:

GENERAL RESPONSES

1. Applicant’s responses and objections to the Requests for Admission are based on







2










4. Applicant’s responses and objections to the Requests for Admission are subject to

any protective order that may be agreed upon by the parties and/or entered in these proceedings.

GENERAL OBJECTIONS

1. Applicant objects to the Requests for Admission to the extent they seek to impose





3. Applicant objects to each Request for Admission to the extent it seeks information





proceedings.

3

5. Applicant objects to each Request for Admission to the extent that it is vague,


6. Applicant objects to each Request for Admission to the extent that it seeks a

response that is duplicative of responses to one or more of the other Interrogatories.

7. Applicant objects to each Request for Admission to the extent that it seeks the






admissible evidence, to the extent that it is not geographically limited. The Trademark Trial and


States. See TBMP §102.01. Applicant will not provide responses regarding or related to non-

U.S. persons or non-U.S. activities.



admissible evidence, to the extent that it is not limited in time or specify a relevant date for a

response. Applicant will construe the relevant time period for each Request for Admission as

January 15, 2016, the date of first use listed in Gilead Capital’s Application Serial No.

87/048887 and Application Serial No. 87/048941, through March 8, 2017, the date when

Opposer presumably had a reasonable basis for filing its Notice of Opposition sufficient to

comply with Fed. R. Civ. P. 11. (“Relevant Time Period”). Pursuant to Fed. R. Civ. P. 11, by

presenting Opposer’s Notices of Opposition, dated March 8, 2017, Opposer’s counsel, Lisa

4

Greenwald-Swire of Fish & Richardson P.C., certified that to the best of her knowledge,

information, and belief, formed after an inquiry reasonable under the circumstances, that the

factual contentions have evidentiary support. Opposer’s counsel either had a reasonable basis for

filing the Oppositions on March 8, 2017, or she did not. Opposer is not permitted to file

Opposition proceedings without a reasonable basis, with the hope of uncovering information

through a fishing expedition. Furthermore, information after the date the Opposition proceedings

commenced, which are relevant to the claims or defenses in these proceedings, are most likely

protected from disclosure by attorney work product immunity. Applicant will construe the

Requests for Admission as seeking information from within the Relevant Time Period, and

Applicant’s responses will be as of March 8, 2017.

11. Applicant objects to each Request for Admission to the extent they imply the

existence of facts or circumstances which do not or did not exist, and to the extent they state or

assume legal conclusions. In providing these responses and objections to the Requests for

Admission, Applicant does not admit the factual or legal premise of any of the Requests for

Admission.

12. For purposes of Applicant’s Responses and Objections to Opposer’s Second Set

of Requests for Admission, Applicant adopts its objections to the definitions and instructions to

Opposer’s First Set of Requests for Admission, to the extent Opposer has incorporated such

definitions and instructions into these Requests.

13. Applicant objects to the definition of “Opposer” as vague, ambiguous, overbroad,


evidence because it purports to require Applicant to identify each of Opposer’s parent

corporations and wholly-owned or partially-owned subsidiaries, predecessors, successors,

5

assigns, or affiliates, and then to interpret whether the Request applies to them. Applicant will

construe “Opposer” as solely Gilead Sciences, Inc. and representatives acting on its behalf.


assumes facts not in evidence and erroneous legal conclusions. Applicant further objects to the

definition of “Opposer’s Mark” as vague, ambiguous, unduly burdensome, and inscrutable, as to

Opposer’s purported use of the word GILEAD to distinguish its goods and services that are not

identified in U.S. Registration Nos. 3604505, 4279898, and 3251595. Moreover, Applicant

objects to the definition of “Opposer’s Mark” to the extent Opposer is using the term to

encompass registered marks that were not pleaded as a basis for Opposer’s claims in the

Opposition. If Opposer desires to expand the scope of the Opposition, it must do so through

amendment of the pleadings. For purposes of these Requests for Admission, Gilead Capital will

construe “Opposer’s Mark” as the three registered trademarks that are specifically identified in

Opposer’s Amended Notices of Opposition as the basis for the Oppositions: U.S. Registration


15. Applicant objects to the definition of “health” or “medical” industry or field as


discovery of admissible evidence because, among other things, the scope of the Food and Drug

Administration’s (FDA) regulatory authority is so broad and encompasses goods and services

that are not provided by either Applicant or Opposer or otherwise not necessarily understood as

health or medical fields. For instance, the FDA regulates food and food products, electronic

products that give off radiation, cosmetics, veterinary products, and tobacco products. Applicant

will construe requests referring to “health” or “medical” industry or field as referring to persons

providing goods or services which Applicant believes would fall within North American Industry

6

Classification System (“NAICS”) Sector 62, NAICS Industry Group 3254 (i.e., pharmaceutical

and medicine manufacturing), or NAICS Industry Group 4461 (i.e., retail health and personal

care stores)—i.e., the NAICS Industry codes specifically identified by Opposer. Applicant also

objects to the definition of “health” or “medical” industry as vague, ambiguous, overbroad,

unduly burdensome, inscrutable, and not reasonably calculated to lead to the discovery of

admissible evidence because it requires Applicant to determine what goods and services are

“designed to be used primarily by persons” in the health or medical fields.

16. The General Objections set forth herein are incorporated into each of the

following responses to the Requests for Admission, and the General Objections shall be deemed

continuing as to each Request and are not waived, or in any way limited, by the following

responses. By setting forth any specific objections, Applicant does not intend to limit, restrict, or

waive any of the General Objections set forth herein.


limits of the Specific Objections set forth below in response to particular Requests for

Admission, Applicant responds as follows:

7


REQUEST NO. 32

Admit that Applicant was aware of Opposer’s use of GILEAD as part of its company name when

Applicant adopted the GILEAD CAPITAL trademark.


Applicant objects to this Request because it is not relevant to the claims or defenses in

these proceedings.

Subject to and without waiver of its objections, Applicant admits that Applicant was

aware of Opposer’s use of the word “Gilead” as part of its company name when Applicant

adopted the GILEAD CAPITAL trademark.

REQUEST NO. 33

Admit that Applicant considered the possibility of a trademark dispute with Opposer when

Applicant was considering adopting GILEAD CAPITAL as a trademark.


Applicant objects to this Request as not relevant to the claims or defenses.


REQUEST NO. 34

Admit that Applicant has invested in at least one company that offers goods or services to the

health or medical industry.


Applicant objects to this Request as compound. Pursuant to Fed. R. Civ. P. 36, each

matter must be separately stated.

Applicant objects to the definition of “health” or “medical” industry or field as vague,


8



that are not provided by either Applicant or Opposer. For instance, the FDA regulates food and

food products, electronic products that give off radiation, cosmetics, veterinary products, and

tobacco products. Applicant will construe requests referring to “health” or “medical” industry or

field as referring to persons providing goods or services which Applicant believes would fall

within North American Industry Classification System (“NAICS”) Sector 62, NAICS Industry

Group 3254 (i.e., pharmaceutical and medicine manufacturing), or NAICS Industry Group 4461

(i.e., retail health and personal care stores). Applicant also objects to the definition of “health” or

“medical” industry as vague, ambiguous, overbroad, unduly burdensome, and not reasonably

calculated to lead to the discovery of admissible evidence insofar as it requires Applicant to

determine what goods and services are “designed to be used primarily by persons” in the health

or medical fields.


REQUEST NO. 35

Admit that third parties have referred to Applicant as “Gilead.”


Applicant objects to this Request because it is not limited in geographic scope or time.

Applicant also objects to this Request because it is not relevant to the claims or defenses in these

proceedings.

Subject to and without waiver of its objections, Applicant admits that some third parties

in the United States have referred to Applicant as “Gilead” during the Relevant Time Period.

9

REQUEST NO. 36

Admit that a trademark clearance search and/or analysis was performed by or for Applicant on

the GILEAD CAPITAL trademark prior to Applicant’s adoption of such a mark.


Applicant objects to this Request as vague and ambiguous as to the term “analysis.”

Applicant objects to this Request as compound (“and/or,” “by or for”). Pursuant to Fed. R. Civ.

P. 36, each matter must be separately stated. As a result, this Request is incapable of a response

as posed. Applicant also objects to this Request to the extent it seeks information that is


immunity from disclosure. Applicant further objects to this Request as seeking information that

is not relevant to the claims or defenses in these proceedings.


REQUEST NO. 37

Admit that a trademark clearance search and/or analysis was performed by or for Applicant on

the GILEAD CAPITAL trademark subsequent to Applicant’s adoption of such mark.


Applicant objects to this Request as vague and ambiguous as to the term “analysis.”

Applicant objects to this Request as compound (“and/or,” “by or for”). Pursuant to Fed. R. Civ.

P. 36, each matter must be separately stated. As a result, this Request is incapable of a response

as posed. Applicant also objects to this Request to the extent it seeks information that is





Supporting Exhibits

EXHIBIT 14

1



P.O. Box 1451



EJW/lw




v.

Gilead Capital LP


OPPOSER’S SECOND SET OF INTERROGATORIES




Sciences, Inc.’s Second Set of Interrogatories to Applicant (“Interrogatories”) as follows:

GENERAL RESPONSES

1. Applicant’s responses and objections to the Interrogatories are based on







2







3. Any dates provided in these responses are on or about the dates identified.




5. Applicant’s responses and objections to the Interrogatories are subject to any


GENERAL OBJECTIONS AND QUALIFICATIONS

1. Applicant objects to the Interrogatories to the extent they seek to impose upon



2. Applicant objects to the Instructions and Definitions contained in the

Interrogatories on the grounds that they are overbroad, unduly burdensome, excessive in detail,

and seek information that is not reasonably calculated to lead to the discovery of admissible

evidence.


is not within Applicant’s knowledge, possession, custody, or control.

3

4. Applicant objects to each Interrogatory to the extent it seeks information that is

protected from disclosure by the attorney-client privilege, work product immunity or any other

privilege or immunity against disclosure.


is neither material nor necessary to the prosecution or defense of these proceedings.

6. Applicant objects to each Interrogatory to the extent that it is vague, ambiguous,

lacking in specificity, or otherwise incomprehensible or inscrutable.

7. Applicant objects to each Interrogatory to the extent that it seeks a response that is

duplicative of responses to one or more of the other Interrogatories.

8. Applicant objects to each Interrogatory to the extent that it seeks the disclosure of

information of a confidential and/or proprietary nature.


is publicly-available or otherwise equally or more available to Opposer.

10. Applicant objects to each Interrogatory to the extent that it seeks any relevant

documents and directs Opposer to the documents produced by Applicant in response to

Opposer’s Document Requests.

11. Applicant incorporates by reference its objections to the Definitions and

Instructions to Opposer’s Second Set of Requests for the Production of Documents and Things to

Applicant.


below. Applicant will also state other Specific Objections were appropriate. By setting forth

such Specific Objections, Applicant does not intend to limit, restrict, or waive any of the General

Objections set forth above. By setting forth specific responses, Applicant is not agreeing to

4

Opposer’s Instructions of Definitions and is not conceding the relevance of information provided

in a response. To the extent that Applicant responds to an Interrogatory, the General and/or

Specific Objections are not waived by such response. In addition, the inadvertent disclosure of

privileged information or release of privileged documents shall not constitute a waiver of any

applicable privilege.

13. Subject to and without waiver of the foregoing General Objections, and within the

limits of the Specific Objections set forth below in response to the particular Interrogatories,




Identify the date(s) on which Applicant was registered with, or otherwise received any regulatory

permits or approvals to do business from, any state or federal agencies or other regulatory

authorities.


Applicant objects to the definition of “Identify” as unduly burdensome and imposing


Federal Rules of Civil Procedure. Applicant objects to this Interrogatory to the extent the

information is publicly available or equally available to Opposer. Applicant objects to this

Interrogatory as compound. Applicant objects to the definition of “date” as vague, ambiguous,

lacking in specificity, unduly burdensome, and inscrutable, and purporting to impose upon

Applicant requirements beyond the Trademark Rules of Practice and Federal Rules of Civil



Interrogatory as seeking information that is not relevant to the claims or defenses and not

5

reasonably calculated to lead to the discovery of admissible evidence because Applicant’s

regulatory compliance is not germane to any of the DuPont factors and Opposer has not asserted

a statutory basis for challenging Applicant’s ability or authority to render Applicant’s Services.

Opposer cannot expand its claims through discovery requests.


Identify the earliest date upon which Applicant intends to rely to establish priority in this

proceeding.


Applicant objects to this Interrogatory to the extent the information is publicly available

or equally available to Opposer. Applicant objects to the definition of “date” as vague,

ambiguous, lacking in specificity, unduly burdensome, and inscrutable, and purporting to impose

upon Applicant requirements beyond the Trademark Rules of Practice and Federal Rules of Civil



Interrogatory to the extent it purports to shift the burden of proof in these Opposition

proceedings to Applicant. Subject to, and without waiver of, the foregoing General and Specific


January 15, 2016.


For the date identified in response to Interrogatory No. 22, describe in detail the basis for

Applicant’s reliance on such date.




6




means of relationship to other events, locations, or matters. Applicant also objects to this

Interrogatory to the extent it calls for information protected by the attorney-client privilege, work

product immunity, or any other privilege or immunity from disclosure. Applicant further objects

to this Interrogatory to the extent it purports to shift the burden of proof in these Opposition

proceedings to Applicant. Subject to, and without waiver of, the foregoing General and Specific


On January 15, 2016, Applicant filed with the U.S. Securities and Exchange Commission

(“SEC”) its Form ADV. The brochure included Applicant’s GILEAD CAPITAL and GILEAD

CAPITAL LEADERSHIP INVESTING Marks and was made available to investors and

potential investors on the SEC website, as well as directly from Applicant.


For the date identified in response to Interrogatory No. 22, identify all documents or other

evidence that support your response.







means of relationship to other events, locations, or matters. Applicant also objects to this

Interrogatory to the extent it calls for information protected by the attorney-client privilege, work

7

product immunity, or any other privilege or immunity from disclosure. Applicant further objects

to this Interrogatory to the extent it purports to shift the burden of proof in these Opposition

proceedings to Applicant. Applicant objects to this Interrogatory as purporting to impose

obligations upon Applicant beyond those of the Trademark Rules of Practice and the Federal

Rules of Civil Procedure. Subject to, and without waiver of, the foregoing General and Specific


Applicant’s initial Form ADV, which was filed on January 15, 2016. Applicant will also

produce relevant, non-privileged documents under Federal Rule of Civil Procedure 33(d) from

which relevant information may be ascertained.


Identify each brokerage or other third party Applicant has used to reach potential clients, as

referred to in Applicant’s responses to Interrogatory Nos. 7 and 17.




Federal Rules of Civil Procedure. Applicant objects to this Interrogatory as vague, ambiguous,


admissible evidence because “third party” could be construed as any person who is not a partner

or employee of Applicant and the term “has used” is ambiguous. Applicant will construe “third

party” to include persons that offer services to reach potential clients, but exclude persons within

Applicant’s personal and professional networks. Subject to, and without waiver of, the foregoing

General and Specific Objections, Applicant responds as follows:

Applicant has used the services of Jefferies, Inc. and Santangel’s Events LLC to reach

potential clients. Applicant will also produce relevant, non-privileged documents under Federal

8

Rule of Civil Procedure 33(d) from which relevant information regarding Applicant’s personal

and professional networks may be ascertained.


Identify all third parties who have mentioned to Applicant any similarity between Opposer’s

name or Mark and Applicant’s name or Mark at any time from January 1, 2014, to the present.




Federal Rules of Civil Procedure. Applicant objects to the definition of “Opposer’s Mark”

because the definition assumes facts not in evidence and erroneous legal conclusions. Applicant

further objects to the definition of “Opposer’s Mark” as vague, ambiguous, unduly burdensome,

and inscrutable, as to Opposer’s purported use of the word GILEAD to distinguish its goods and

services that are not identified in U.S. Registration Nos. 3604505, 4279898, and 3251595.

Moreover, Applicant objects to the definition of “Opposer’s Mark” to the extent Opposer is

using the term to encompass registered marks that were not pleaded as a basis for Opposer’s

claims in the Opposition. If Opposer desires to expand the scope of the Opposition, it must do so

through amendment of the pleadings. For purposes of the Document Requests, Gilead Capital



No. 3604505, U.S. Registration No. 4279898, and U.S. Registration No. 3251595

Applicant objects to this Interrogatory as vague, ambiguous, overbroad, unduly


because “third parties” could be construed as including persons who are not actual or potential

purchasers or consumers of the goods or services of Opposer or Applicant. Applicant further

9

objects to this Interrogatory because it is not limited in geographic scope. Applicant objects to

the time period in this Interrogatory as not relevant to the claims or defenses and not reasonably

calculated to lead to the discovery of admissible evidence because Applicant was formed on

January 12, 2016. Applicant will respond with information from January 12, 2016 through the

date of service of these responses. Subject to, and without waiver of, the foregoing General and


Manako Ihaya and Jayson Ward.


Identify any conferences (including trade shows or conventions) that have solicited sponsorship,

financial support or other participation from Applicant.




Federal Rules of Civil Procedure. Applicant objects to this Interrogatory as vague, ambiguous,


admissible evidence because the term “participation” is ambiguous, and Applicant’s attendance

at conferences that are not capital introduction conferences is not germane to any of the DuPont

factors. Applicant objects to this Interrogatory as compound. Applicant further objects to this

Interrogatory because it is not limited in geographic scope or time. Subject to, and without

waiver of, the foregoing General and Specific Objections, Applicant responds as follows:

Applicant has not been solicited to sponsor or provide financial support for any

conferences.


Identify any organizations of which Applicant is a member.

10




Federal Rules of Civil Procedure. Applicant also objects to this Interrogatory as vague,

ambiguous, overbroad, unduly burdensome, and inscrutable as to the meaning and scope of

“organizations.” Applicant further objects to this Interrogatory as not relevant to the claims or

defenses and not reasonably calculated to lead to the discovery of admissible evidence. Subject

to, and without waiver of, the foregoing General and Specific Objections, Applicant responds as

follows:

Applicant is unable to respond to this Interrogatory as posed. Applicant is willing to

meet and confer with Opposer regarding the scope of this Interrogatory.


Identify all general partners and limited partners of Applicant.




Federal Rules of Civil Procedure. Applicant objects to this Interrogatory to the extent that the

information is publicly or equally available to Opposer. Applicant objects to this Interrogatory

as compound. Applicant objects to this Interrogatory as not relevant to the claims or defenses

and not reasonably calculated to lead to the discovery of admissible evidence. Subject to, and

without waiver of, the foregoing General and Specific Objections, Applicant responds as

follows:

11

The general partner of Applicant is Gilead Capital GP LLC. The limited partners of

Applicant are Jeffrey A. Strong, Justin Kane, Kanchana Wangkeo Leung, Anatoly Bykhovsky,

and Semanti Datta Kulkarni.


Identify the industry for each company in which Applicant has invested.




Federal Rules of Civil Procedure. Applicant objects to this Interrogatory because it is not limited

in geographic scope or time. Applicant also objects to this Interrogatory to the extent

information is publicly available or equally available to Opposer. Applicant further objects to

this Interrogatory as vague, ambiguous, overbroad, unduly burdensome, and not reasonably

calculated to lead to the discovery of admissible evidence. The marks cited by Opposer as the

basis for its Opposition are U.S. Registration Nos. 3604505, 427989, and 3251595. Applicant’s

investments or potential investments on behalf of its clients are not relevant to any of the DuPont

factors, especially with respect to Applicant’s activities that are not visible to consumers and

prospective purchasers. We are willing to meet and confer with Opposer to better understand

Opposer’s theory of relevance.


Describe in detail the goods or services offered by each company in which Applicant has

invested.


Applicant objects to this Interrogatory as purporting to impose upon Applicant

requirements that extend beyond the Trademark Rules of Practice and the Federal Rules of Civil

12

Procedure. Applicant objects to this Interrogatory because it is not limited in geographic scope

or time. Applicant also objects to this Interrogatory to the extent the information is publicly

available or equally available to Opposer. Applicant objects to this Interrogatory as compound.

Applicant further objects to this Interrogatory as vague, ambiguous, overbroad, unduly

burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. The

marks cited by Opposer as the basis for its Opposition are U.S. Registration Nos. 3604505,

427989, and 3251595. Applicant’s investments or potential investments on behalf of its clients

are not relevant to any of the DuPont factors, especially with respect to Applicant’s activities that

are not visible to consumers and prospective purchasers. We are willing to meet and confer with

Opposer to better understand Opposer’s theory of relevance.


Identify any positions on the Board of Directors of a third-party company held by any general

partner of Applicant from 2015 through the present.




Federal Rules of Civil Procedure. Applicant objects to this Interrogatory to the extent the

information is publicly or equally available to Opposer. Applicant also objects to this

Interrogatory as vague and ambiguous as to the term “third-party company.” Applicant will

construe “third-party company” to mean publicly-traded company. Applicant objects to the time

period in this Interrogatory as not relevant to the claims or defenses and not reasonably

calculated to lead to the discovery of admissible evidence because Applicant was formed on

January 12, 2016. Applicant will respond with information from January 12, 2016 through the

13

date of service of these responses. Subject to, and without waiver of, the foregoing General and


Applicant’s general partner has not held any Board seats in any publicly-traded

companies.


Describe in detail the basis for your denial of ¶ 22 of the Amended Notice of Opposition filed by

Opposer on September 15, 2017.


Applicant objects to this Interrogatory as imposing upon Applicant requirements that

extend beyond the Trademark Rules of Practice and the Federal Rules of Civil Procedure.



Opposer’s name is not “Gilead”; Opposer’s name is “Gilead Sciences, Inc.” In addition,

paragraph 22 of the Amended Notice of Opposition is vague and ambiguous as to the term “long

before” and the scope of the public and knowledge referred to therein. Further, Applicant does

not have knowledge or information sufficient to form a belief that Opposer is publicly known as

GILEAD instead of its name.







14



Opposer’s name is not “Gilead”; Opposer’s name is “Gilead Sciences, Inc.” In addition,

Applicant’s GILEAD CAPITAL LEADERSHIP INVESTING Mark and GILEAD CAPITAL

Mark are not the same as Opposer’s name. Further, paragraph 23 of the Amended Notice of

Opposition is vague and ambiguous as to the meanings of “close approximation” and Opposer’s

“identity” therein.









Paragraph 24 of the Amended Notice of Opposition is not a statement of fact but rather a

forward-looking statement inasmuch as it predicts what purchasers would recognize. Paragraph

24 is also non-sensical and incomprehensible insofar as it asserts that a purchaser would

“recognize” trademarks consisting of two words (GILEAD CAPITAL) or four words (GILEAD

CAPITAL LEADERSHIP INVESTING) to be the one word GILEAD. The word “Gilead” does

not point uniquely and unmistakably to Opposer, as it is derived from the Bible and has been

used to refer to persons, places, and things that are not Opposer. Further, purchasers of

Applicant’s services are sophisticated investors who would not automatically assume that the

GILEAD CAPITAL LEADERSHIP INVESTING or GILEAD CAPITAL Marks are Opposer’s




Supporting Exhibits

EXHIBIT 15

1



P.O. Box 1451



EJW/lw




v.

Gilead Capital LP


OPPOSER’S SECOND SET OF REQUESTS FOR

THE PRODUCTION OF DOCUMENTS AND THINGS




Sciences, Inc.’s Second Set of Requests for the Production of Documents and Things to

Applicant (“Document Requests”) as follows:

GENERAL RESPONSES

1. Applicant’s responses and objections to the Document Requests are based on

information presently known to Applicant and/or its attorney. Applicant reserves the right to

supplement, amend, or modify these responses and objections in the event and to the extent

future discovery so justifies. Should Applicant at any time supplement or amend its responses

and/or objections to any Document Request, Applicant reserves the right to assert any available

2

privilege or other protection as to any response that might otherwise be discoverable in

connection with Applicant’s supplementation or amendment.


relevance, materiality, privilege, and admissibility of each response, or any other proper grounds,





3. Applicant expressly reserves the right to rely at any time, including in these or

any other proceedings, on information that is subsequently discovered or was omitted from these


4. These responses and any further responses or information produced therein are

made without any acknowledgement or concession that the information requested is relevant or

material to the subject matter of this action, or is otherwise admissible in these or any other

proceedings.

5. Applicant’s responses and objections to the Document Requests are subject to any


GENERAL OBJECTIONS

1. Applicant objects to the Document Requests to the extent they seek to impose



2. Applicant objects to the Instructions and Definitions contained in the Document

Requests on the grounds that they are overbroad, unduly burdensome, excessive in detail, and

3

seek information that is not reasonably calculated to lead to the discovery of admissible

evidence.



4. Applicant objects to each Document Request to the extent it seeks information





proceedings.

6. Applicant objects to each Document Request to the extent that it is vague,


7. Applicant objects to each Document Request to the extent that it seeks a response

that is duplicative of responses to one or more of the other Document Requests.

8. Applicant objects to each Document Request to the extent that it seeks the




10. Applicant objects to each Document Request to the extent it calls for

electronically-stored information that is not reasonably accessible without undue burden or cost.

11. Applicant incorporates by reference its objections to the Definitions and

Instructions in Opposer’s First Set of Requests for the Production of Documents and Things to

4

Applicant, to the extent Opposer has incorporated such Definitions and Instructions into these

Document Requests.









amendment of the pleadings. For purposes of the Document Requests, Gilead Capital will

construe “Opposer’s Mark” as the three registered trademarks that are specifically identified in

Opposer’s Amended Notices of Opposition as the basis for the Oppositions: U.S. Registration


13. Applicant objects to the definition of “Date” as vague, ambiguous, lacking in

specificity, unduly burdensome, and inscrutable, and purporting to impose upon Applicant

requirements beyond the Trademark Rules of Practice and Federal Rules of Civil Procedure,

insofar as it requires Applicant to closely approximate a day, month, and year by means of

relationship to other events, locations, or matters.



the Federal Rules of Civil Procedure. Applicant will produce responsive, non-privileged

5

documents as they are kept in the ordinary course of business and will not create documents to

supply additional information not apparent on the face of the documents.

15. Applicant objects to the definition of “health” or “medical” industry or field as




that are not provided by either Applicant or Opposer or otherwise not necessarily understood as

health or medical fields. For instance, the FDA regulates food and food products, electronic

products that give off radiation, cosmetics, veterinary products, and tobacco products. Applicant

will construe requests referring to “health” or “medical” industry or field as referring to persons

providing goods or services which Applicant believes would fall within North American Industry

Classification System (“NAICS”) Sector 62, NAICS Industry Group 3254 (i.e., pharmaceutical

and medicine manufacturing), or NAICS Industry Group 4461 (i.e., retail health and personal

care stores)—i.e., the NAICS Industry codes specifically identified by Opposer. Applicant also

objects to the definition of “health” or “medical” industry as vague, ambiguous, overbroad,

unduly burdensome, inscrutable, and not reasonably calculated to lead to the discovery of

admissible evidence because it requires Applicant to determine what goods and services are

“designed to be used primarily by persons” in the health or medical fields.


below. Applicant will also state other specific objections where appropriate. By setting forth

such specific objections, Applicant does not intend to limit, restrict or waive any of the General

Objections set forth above. By setting specific responses, Applicant is not agreeing to Opposer’s

Instructions and Definitions and is not conceding the relevance, materiality or admissibility of

6

information provided in a response. To the extent that Applicant responds to a Document

Request, the General Objections and/or specific objections are not waived by such response. In

addition, the inadvertent disclosure of privileged information or release of privileged documents

shall not constitute a waiver of any applicable privilege.


limits of the Specific Objections set forth below in response to particular Document Requests,



REQUEST NO. 32

Documents sufficient to identify the targets and amounts of Applicant’s investments in

companies that offer goods or services in the pharmaceutical, biotech or health/medical

industries.


Applicant objects to this Document Request because it is not limited in geographic scope

or time. Applicant objects to this Document Request to the extent information is publicly

available or equally available to Opposer.

Applicant objects to this Document Request as vague, ambiguous, overbroad, unduly

burdensome, and not reasonably calculated to lead to the discovery of admissible evidence.

Opposer has not defined “pharmaceutical” and “biotech” industries, whereas Opposer’s

definition of “health” or “medical” industry or field is vague, ambiguous, overbroad, unduly


because, among other things, the scope of the Food and Drug Administration’s (FDA) regulatory

authority is so broad and encompasses goods and services that are not provided by either

Applicant or Opposer or otherwise not necessarily understood as health or medical fields. For

7

instance, the FDA regulates food and food products, electronic products that give off radiation,

cosmetics, veterinary products, and tobacco products. Applicant will construe requests referring

to “health” or “medical” industry or field as referring to persons providing goods or services

which Applicant believes would fall within North American Industry Classification System

(“NAICS”) Sector 62, NAICS Industry Group 3254 (i.e., pharmaceutical and medicine

manufacturing), or NAICS Industry Group 4461 (i.e., retail health and personal care stores)—

i.e., the NAICS Industry codes specifically identified by Opposer. Applicant also objects to the

definition of “health” or “medical” industry as vague, ambiguous, overbroad, unduly

burdensome, inscrutable, and not reasonably calculated to lead to the discovery of admissible

evidence because it requires Applicant to determine what goods and services are “designed to be

used primarily by persons” in the health or medical fields.

It is also unclear what “target . . . of Applicant’s investments” means in the context of

these trademark opposition proceedings. The marks cited by Opposer as the basis for its

Opposition are U.S. Registration Nos. 3604505, 427989, and 3251595. Applicant’s investments

or potential investments on behalf of its clients are not relevant to any of the DuPont factors,

especially with respect to Applicant’s activities that are not visible to consumers and prospective

purchasers. We are willing to meet and confer with Opposer to better understand Opposer’s

theory of relevance.

REQUEST NO. 33

All Documents that identify and describe Applicant’s investment strategy, as referred to in

Applicant’s Responses to Interrogatory No. 3, Request for Admission No. 9, Request for

Admission No. 22, and Request for Admission No. 23.

8


Applicant objects to this Document Request to the extent information is publicly

available or equally available to Opposer. Applicant objects to this Document Request on the

grounds that it is overbroad, unduly burdensome, and not proportional to the needs of the case to

require the production of “all” Documents. Applicant also objects to this Document Request as

seeking information that is not relevant to the claims or defenses and not reasonably calculated to

lead to the discovery of admissible evidence insofar as it seeks information that was not used or

incorporated into documents provided to clients or potential clients of Applicant. Subject to, and



REQUEST NO. 34

Documents sufficient to identify and describe in detail the process a customer would undertake

to purchase or procure Applicant’s Services.




available or equally available to Opposer. Applicant objects to this Document Request to the

extent it calls for the production of documents that are protected by attorney-client privilege,

work product immunity, or any other privilege or immunity against disclosure. Subject to, and



REQUEST NO. 35

All Documents that evidence the steps Applicant has taken to comply with regulatory

requirements necessary for Applicant to render Applicant’s Services.

9


Applicant objects to this Document Request on the grounds that it is overbroad, unduly

burdensome, and not proportional to the needs of the case to require the production of “all”

Documents. Applicant also objects to this Document Request to the extent information is

publicly available or equally available to Opposer. Applicant objects to this Document Request

to the extent it calls for the production of documents that are protected by attorney-client


Applicant further objects to this Document Request as seeking information that is not relevant to

the claims or defenses and not reasonably calculated to lead to the discovery of admissible

evidence because Applicant’s regulatory compliance is not germane to any of the DuPont factors

and Opposer has not asserted a statutory basis for challenging Applicant’s ability or authority to

render Applicant’s Services. Opposer cannot expand its claims through discovery requests.

REQUEST NO. 36

All Documents that refer or relate to any instances in which a Person inquired or commented

about any possible relationship between Opposer and Applicant.



or time. Applicant also objects to this Document Request as vague and ambiguous as to the

phrase “possible relationship.” Applicant objects to this Document Request to the extent it calls

for the production of documents that are protected by attorney-client privilege, work product

immunity, or any other privilege or immunity against disclosure. Applicant further objects to

this Document Request to the extent it is unreasonably duplicative and cumulative of Document

Request Nos. 5 and 6. Subject to, and without waiver of, the foregoing General and Specific

10

Objections, Applicant will produce relevant, non-privileged documents responsive to this

Document Request, if any.

REQUEST NO. 37

All Documents in your possession that mention Opposer, other than documents obtains from

Opposer, the pleadings in the Opposition, and correspondence to or from Opposer’s counsel.


Applicant objects to this document request as overbroad, unduly burdensome, and not

proportional to the needs of the case, and not reasonably calculated to lead to the discovery of

admissible evidence because it requires the production of “all” Documents mentioning Opposer,

where Opposer is a publicly-traded company whose name or ticker occasionally appear on mass

communications to investment advisers, such as Applicant. Applicant will not produce mass

communications, such as news blasts and unsolicited investment updates where Opposer or

Opposer’s ticker is mentioned among numerous companies. Applicant objects to this Document

Request to the extent it calls for the production of documents that are protected by attorney-client


Applicant further objects to this Document Request to the extent it is unreasonably duplicative

and cumulative of Document Request No. 4. Subject to, and without waiver of, the foregoing

General and Specific Objections, Applicant will produce relevant, non-privileged documents that

mention Opposer, which are not mass communications, if any.

REQUEST NO. 38

All Documents that support your denial of ¶ 22 of the Amended Notice of Opposition filed by


11




Documents. Applicant objects to this Document Request as seeking Documents that are in

Opposer’s possession, custody, or control, or to which Opposer has better or equal access.

Applicant objects to this Document Request because it is not limited in geographic scope or time.

Applicant objects to this Document Request to the extent it calls for the production of documents

that are protected by attorney-client privilege, work product immunity, or any other privilege or

immunity against disclosure. Subject to, and without waiver of, the foregoing General and



REQUEST NO. 39













12

REQUEST NO. 40













REQUEST NO. 41











13



REQUEST NO. 42

All Documents that relate to Applicant’s use of a brokerage firm or other third party to reach

potential clients, as referred to in Applicant’s responses to Interrogatory Nos. 7 and 17.




Documents. Applicant further objects to this Document Request to the extent it is unreasonably

duplicative and cumulative of Document Request No. 10, 11, 13, and 19. Subject to, and without

waiver of, the foregoing General and Specific Objections, Applicant will produce relevant, non-


REQUEST NO. 43

Documents sufficient to describe the nature of the goods and services rendered by each company

in which Applicant has invested.




available or equally available to Opposer. Applicant also objects to this Document Request as

not relevant to the claims or defenses and not reasonably calculated to the discovery of

admissible evidence. The marks cited by Opposer as the basis for its Opposition are U.S.

Registration Nos. 3604505, 427989, and 3251595. Applicant’s investments or potential

investments on behalf of its clients are not relevant to any of the DuPont factors, especially with

respect to Applicant’s activities that are not visible to consumers and prospective purchasers.




Supporting Exhibits

EXHIBIT 16



P.O. Box 1451



EJW/lw




v.

Gilead Capital LP

APPLICANT’S RESPONSES AND OBJECTIONS

TO OPPOSER’S NOTICE OF RULE 30(b)(6) DEPOSITION

Applicant Gilead Capital LP (“Applicant” or “Gilead Capital”) hereby objects to Opposer

Gilead Sciences, Inc.’s (“Opposer” or “GSI”)’s Notice of Rule 30(b)(6) Deposition to Applicant,

served on May 7, 2018, and to each topic, definition, and instruction therein (the “Notice”) as

follows:

Applicant’s objections shall not be deemed an admission as to any fact in dispute or

waiver of any rights or defenses Applicant has or may assert with respect to any claim.

Applicant reserves all objections as to the admissibility at any trial or other proceeding of any

information provided pursuant to the Notice, including, without limitation, all objections on the

grounds that the information is not relevant or material.

By responding to a particular Topic at a deposition, Applicant does not accept, adopt, or

concede the truth or validity of any characterization made in that Topic. No objection or

limitation, or lack thereof, made in these objections shall be deemed an admission by Applicant

as to the existence or nonexistence of information.

Applicant is willing to meet and confer with Opposer regarding its objections to the

Notice and the Topics to determine the scope of the Topics for which Applicant will produce a

witness to testify.

Irrespective of whether Applicant provides information in a deposition in response to the

Notice, Applicant further reserves the right to: (i) revise, correct, supplement, or clarify the

content of this response in accordance with the applicable rules; (ii) provide additional

responsive information in the future; (iii) object to further discovery in this matter.

GENERAL OBJECTIONS

The General Objections set forth below apply to the Notice generally and to each

Definition, Instruction, and Specific Topic included in the Notice, and unless otherwise stated,

shall have the same force and effect as if set forth in full in response to each Definition,

Instruction, and Specific Topic. Any undertaking to search for, or provide information in

response to, any item of the Notice remains subject to the Objections. The fact that an objection

is not listed herein does not constitute a waiver of that objection or otherwise preclude Applicant

from raising that objection at a later time.

1. Applicant objects to the Notice and Topics to the extent they seek to impose upon



2. Applicant objects to the Instructions and Definitions contained in the Notice on

the grounds that they are overbroad, unduly burdensome, excessive in detail, and seek

information that is not reasonably calculated to lead to the discovery of admissible evidence.

3. Applicant objects to the Notice and Topics to the extent they seek information

that is not within Applicant’s knowledge, possession, custody, or control.





that is neither material nor necessary to the prosecution or defense of these proceedings.

6. Applicant objects to the Notice and Topics to the extent they are vague,


7. Applicant objects to the Notice and Topics to the extent they seek the disclosure

of information of a confidential and/or proprietary nature. Applicant will not provide such

information in a deposition without an appropriate protective order in place.

8. Applicant objects to the Notice and Topics to the extent they call for the

disclosure of information as to which Applicant owes a duty of non-disclosure to a third party.

Applicant further objects to the Notice and Topics to the extent the Topics seek the disclosure of

information that, if produced, would result in violation of any contractual objection to third

parties.


that is publicly-available or otherwise equally or more available to Opposer.

10. Applicant objects to the Notice and Topics to the extent they contain inaccurate,

incomplete, or misleading descriptions of facts, persons, or events underlying these proceedings.

Applicant further objects to the Notice and Topics to the extent they contain express or implicit

assumptions of fact or law with respect to the matters at issue in the case. Neither Applicant’s

responses in a deposition nor these Objections are intended to be, and shall not be construed as,

an agreement or concurrence by Applicant with any of Opposer’s mischaracterizations of any

facts, circumstances, and/or legal obligations. Applicant reserves the right to contest any such

characterizations as inaccurate.

11. Applicant objects to the time period specific in the Notice and Topics as overly

broad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible

evidence, and otherwise beyond the scope of permissible discovery. Applicant was formed on

January 12, 2016 and does not have the authority to bind any person to its testimony prior to the

date of its legal existence.

12. Each of the foregoing General Objections is incorporated by reference into each

individual Topic Objection set forth below. When a General Objection is repeated or referred to

in a specific response, it is for emphasis only. Subject to the General Objections, and without

waiver, modification, or limitation thereto, Applicant’s Specific Objections and Responses to the

Topics identified in the Notice are set forth below.

OBJECTIONS TO DEFINITIONS AND INSTRUCTIONS

13. Applicant objects to the definition of “Opposer” as vague, ambiguous, overbroad,


evidence because it purports to require Applicant to identify each of Opposer’s parent

corporations and wholly-owned or partially-owned subsidiaries, predecessors, successors,

assigns, or affiliates, and then to interpret whether the Topic applies to them. Applicant will

construe “Opposer” as solely Gilead Sciences, Inc. and representatives acting on its behalf.

14. Applicant objects to the definition of “Applicant,” “You,” and “Your” as vague,


discovery of admissible evidence. Gilead Capital is the entity applying for registration of the

GILEAD CAPITAL and GILEAD CAPITAL LEADERSHIP INVESTING Marks in

Application Serial Nos. 87/048887 and 87/048941. Furthermore, Applicant cannot bind with its

testimony other persons, including any parent, predecessor, successor, assign, or affiliate. Gilead

Capital will construe “Applicant,” “You,” and “Your” solely as Gilead Capital and

representatives acting on its behalf.









amendment of the pleadings. Gilead Capital will construe “Opposer’s Mark” as the three

registered trademarks that are specifically identified in Opposer’s Amended Notices of

Opposition as the basis for the Oppositions: U.S. Registration No. 3604505, U.S. Registration

No. 4279898, and U.S. Registration No. 3251595.

16. Applicant objects to the definition of “relating,” “regarding,” “related,” or

“relates” as overbroad, unduly burdensome, and not reasonably calculated to lead to the

discovery of admissible evidence as it would necessitate the preparation of the witness and

testimony on topics that are not relevant or proportional to the needs of the case.

17. Applicant objects to the definition of “Date” as vague, ambiguous, lacking in

specificity, unduly burdensome, and inscrutable, and purporting to impose upon Applicant



relationship to other events, locations, or matters.



the Federal Rules of Civil Procedure.

19. Applicant objects to the definition of “Commerce” and “U.S. commerce” to the

extent Opposer is seeking discovery on activities and persons outside of the United States.

Section 1052(d) of Title 15 of the United States Code, which is the basis of Count I of the

Opposition, refers only to use in the United States.

20. Applicant objects to the time period of the topics. Applicant was formed on

January 12, 2016. It cannot bind with its testimony other persons, including any parent,

predecessor, successor, assign, or affiate that existed prior to Applicant. Applicant will construe

the relevant time period as January 12, 2016, through the date of service of these objections.

21. Each of the foregoing General Objections and Objections to Definitions and

Instructions is incorporated by reference into each individual Topic Objection set forth below.

OBJECTIONS TO SPECIFIC TOPICS

Topic No. 1

The corporate organization and structure of Applicant and its partners.


Applicant objects to Topic No. 1 as not relevant to the claims or defenses. Applicant also

objects to Topic No. 1 to the extent it calls for information that is publicly available or equally

available to Opposer. Applicant objects to Topic No. 1 as vague and ambiguous because

Applicant is not a corporation. Applicant further objects to Topic No. 1 because it calls for

responses that are duplicative and cumulative of responses to Interrogatory No. 29. Subject to

and without waiver of the foregoing General and Specific Objections, Applicant will produce a

witness to testify regarding Topic No. 1.

Topic No. 2

The relationship among and function of the various entities formed by Jeffrey Strong having the

word “Gilead” in their names.


Applicant objects to Topic No. 2 as not relevant to the claims or defenses. Applicant also

objects to Topic No. 2 to the extent it calls for information that is publicly available or equally

available to Opposer. Applicant further objects to the time period for Topic No. 2 to the extent it

calls for testimony for any time prior to Applicant’s formation on January 12, 2016. Applicant

will not provide 30(b)(6) testimony for any time prior to Applicant’s formation. In addition,

Applicant objects to this Topic to the extent it calls for 30(b)(1) testimony from Jeffrey Strong.

To the extent the witness provides testimony for any time prior to Applicant’s formation, such

testimony will be in the witness’ personal capacity, and not as a 30(b)(6) witness. Subject to and

without waiver of the foregoing General and Specific Objections, Applicant will produce a

witness to testify regarding Topic No. 2.

Topic No. 3

The selection and adoption of the GILEAD CAPITAL name and trademark.


Applicant objects to Topic No. 3 as not relevant to the claims or defenses because it seeks

information about the selection and adoption of the GILEAD CAPITAL name and trademark,

rather than Applicant’s use of the mark. Applicant objects to the time period for Topic No. 3 to

the extent it calls for testimony for any time prior to Applicant’s formation on January 12, 2016.

Applicant will not provide 30(b)(6) testimony for any time prior to Applicant’s formation. To

the extent the witness provides testimony for any time prior to Applicant’s formation, such

testimony will be in the witness’ personal capacity, and not as a 30(b)(6) witness. Applicant also

objects to Topic No. 3 to the extent it calls for information protected by the attorney-client

privilege, work product immunity, or any other privilege or immunity from disclosure.

Applicant further objects to Topic No. 3 because it calls for responses that are duplicative and

cumulative of responses to Interrogatory No. 3. Subject to and without waiver of the foregoing

General and Specific Objections, Applicant will produce a witness to testify regarding Topic No.

3.

Topic No. 4

Any contracts or agreement related to the GILEAD CAPITAL Mark or the GILEAD CAPITAL

LEADERSHIP INVESTING Mark.


Applicant objects to Topic No. 4 because it does not describe with reasonable

particularity the matters for examination, including, but not only, because the terms “any” and

“related to” are vague, ambiguous, overbroad, and unduly burdensome. Subject to and without

waiver of the foregoing General and Specific Objections, Applicant will produce a witness to

testify regarding Topic No. 4.

Topic No. 5

Any clearance analyses or other evaluations that were performed prior to adopting the GILEAD

CAPITAL name and trademark.


Applicant objects to Topic No. 5 as not relevant to the claims or defenses because it seeks

information about the adoption of the GILEAD CAPITAL name and trademark, rather than

Applicant’s use of the mark. Applicant objects to Topic No. 5 because it does not describe with

reasonable particularity the matters for examination, including, but not only, because the phrase

“other evaluations” is undefined and not circumscribed. Applicant objects to the time period for

Topic No. 5 to the extent it calls for testimony for any time prior to Applicant’s formation on

January 12, 2016. Applicant will not provide 30(b)(6) testimony for any time prior to

Applicant’s formation. To the extent the witness provides testimony for any time prior to

Applicant’s formation, such testimony will be in the witness’ personal capacity, and not as a

30(b)(6) witness. Applicant further objects to Topic No. 5 because it calls for information

protected by the attorney-client privilege, work product immunity, or any other privilege or

immunity from disclosure. Subject to and without waiver of the foregoing General and Specific

Objections, Applicant will produce a witness to testify regarding any non-privileged information

that falls within Topic No. 5.

Topic No. 6

The date when Applicant first became aware of Opposer’s use of the term GILEAD.



particularity the matters for examination, including, but not only, because it is unclear what “use

of the term GILEAD” means and whether it encompasses solely use of the word “Gilead” in

Opposer’s name or whether it refers to use of a mark. Applicant also objects to the definition of

“date” as unduly burdensome, inscrutable, and purporting to impose upon Applicant



relationship to other events, locations, or matters. Applicant further objects to Topic No. 6

because it calls for responses that are duplicative and cumulative of responses to Interrogatory

No. 12. Subject to and without waiver of the foregoing General and Specific Objections,

Applicant will produce a witness to testify regarding Topic No. 6.

Topic No. 7

The date(s) on which Applicant first provided each of Applicant’s Services in U.S. commerce.


Applicant objects to Topic No. 7 as not relevant to the claims or defenses, including, but

not only, because it seeks information about when services were provided, rather than the

conditions under which Applicant’s Services were offered in U.S. commerce. Further, Opposer

has not pleaded a challenge to the sufficiency of Gilead Capital’s trademark applications. If

there is a statutory basis for Opposer to challenge the applications and Opposer intends to assert

it, Opposer must amend its Opposition. Applicant also objects to the definition of “date” as

unduly burdensome, inscrutable, and purporting to impose upon Applicant requirements beyond

the Trademark Rules of Practice and Federal Rules of Civil Procedure, insofar as it requires

Applicant to closely approximate a day, month, and year by means of relationship to other

events, locations, or matters.

Topic No. 8

The manner in which Applicant has provided each of Applicant’s Services in U.S. commerce.



not only, because it seeks information about how Applicant’s Services have been provided,

rather than the conditions under which Applicant’s Services have been offered in U.S.

commerce. Applicant also objects to Topic No. 8 because it does not describe with reasonable

particularity the matters for examination, including, but not only, because it is vague, ambiguous,

and inscrutable what is meant by the “manner” of providing services.

Topic No. 9

The customers or clients of Applicant who received Applicant’s Services.



particularity the matters for examination, including, but not only, because it does not identify

what type of information about Applicant’s customers or clients the Topic seeks. Applicant also

objects to Topic No. 9 to the extent it is not geographically limited to the United States.

Applicant objects to Topic No. 9 on the grounds that certain information regarding Applicant’s

clients are subject to confidentiality agreements, including identities, and may not be generally

disclosed. Subject to and without waiver of the foregoing General and Specific Objections,

Applicant will produce a witness to testify regarding the types of investors who are actual or

potential clients of Applicant, subject to the terms of a protective order entered in these

proceedings.

Topic No. 10

The way in which Applicant has advertised, marketed, or promoted Applicant’s Services.


Applicant objects to Topic No. 10 because it calls for responses that are duplicative and

cumulative of responses to Interrogatory 7. Subject to and without waiver of the foregoing


10.

Topic No. 11

The trade channels or marketing channels for Applicant’s Services.


Applicant objects to Topic No. 11 because it calls for responses that are duplicative and

cumulative of responses to Interrogatory No. 17. Subject to and without waiver of the foregoing


11.

Topic No. 12

The websites, social media pages, or other online locations or media where Applicant markets,

promotes, or provides information regarding Applicant’s Services.


Applicant objects to Topic No. 12 to the extent the information is publicly or equally

available to Opposer. Subject to and without waiver of the foregoing General and Specific

Objections, Applicant will produce a witness to testify regarding Topic No. 12.

Topic No. 13

The date(s) on which Applicant obtained any licenses, certifications, registrations, or other

authorizations related to Applicant’s Services.


Applicant objects to the definition of “date” as unduly burdensome, inscrutable, and

purporting to impose upon Applicant requirements beyond the Trademark Rules of Practice and

Federal Rules of Civil Procedure, insofar as it requires Applicant to closely approximate a day,

month, and year by means of relationship to other events, locations, or matters. Applicant also

objects to Topic No. 13 because it does not describe with reasonable particularity the matters for

examination, including, but not only, because it is unclear what the scope of “related to

Applicant’s Services” means in this context. Applicant objects to Topic No. 13 as not relevant,

material, or necessary to the claims or defenses. Further, Opposer has not pleaded a challenge to

the sufficiency of Gilead Capital’s trademark applications. If there is a statutory basis for

Opposer to challenge the applications and Opposer intends to assert it, Opposer must amend its

Opposition.

Topic No. 14

Any instances of confusion between Opposer and Applicant, to Applicant’s knowledge.


Applicant objects to Topic No. 14 to the extent it is not limited in geographic scope to the

United States. Subject to and without waiver of the foregoing General and Specific Objections,

Applicant will produce a witness to testify regarding Topic No. 14.

Topic No. 15

Any instance where a third party mentioned Opposer to Applicant.


Applicant objects to Topic No. 15 to the extent it is not limited in geographic scope to the

United States. Applicant also objects to Topic No. 15 because it calls for responses that are

duplicative or cumulative of responses to Interrogatory No. 26. Applicant further objects to

Topic No. 15 as overbroad, unduly burdensome, and not relevant to the claims and defenses

because it purports to require information about Opposer, a publicly-traded company, that goes

beyond what is relevant to any of the DuPont factors, including but not limited to, unsolicited

mass communications in which Opposer’s name or ticker may have been mentioned. Subject to

and without waiver of the foregoing General and Specific Objections, Applicant will produce a

witness to testify about instances in which a third party has mentioned to Applicant any

similarity between Opposer’s name or mark and Applicant’s name or mark.

Topic No. 16

The professional conferences Applicant attends.



particularity the matters for examination, including, but not only, because “professional

conferences” is not defined. Applicant also objects to Topic No. 16 as overbroad, unduly

burdensome, and not relevant to the claims and defenses. Subject to and without waiver of the

foregoing General and Specific Objections, Applicant will produce a witness to testify about

capital introduction conferences that Applicant has attended.

Topic No. 17

The companies in which Applicant has invested since its formation.



available to Opposer. Applicant objects to Topic No. 17 to the extent it is not limited in

geographic scope to the United States. Applicant objects to Topic No. 17 because it does not

describe with reasonable particularity the matters for examination, including, but not only,

because it is vague and ambiguous regarding what type of information about companies the

Topic seeks. Applicant further objects to Topic No. 17 as overbroad, unduly burdensome, not

relevant to the claims or defenses, and not reasonably calculated to lead to the discovery of

admissible evidence because Applicant’s investment decisions (especially with respect to

information that is not visible to consumers or prospective purchasers) are not relevant, material,


Topic No. 18

The method or procedure by which Applicant identifies potential companies to target for

investment.






because it is vague and ambiguous regarding the meaning of “target for investment.” Applicant

further objects to Topic No. 18 as overbroad, unduly burdensome, not relevant to the claims or

defenses, and not reasonably calculated to lead to the discovery of admissible evidence because

Applicant’s investment process and decisions (especially with respect to information that is not

visible to consumers or prospective purchasers) are not relevant, material, or necessary to the

prosecution or defense of these proceedings.

Topic No. 19

Applicant’s investment strategy, as referred to in Applicant’s Responses to Interrogatory No. 3,

Request for Admission No. 9, Request for Admission No. 22, and Request for Admission No.

23.




geographic scope to the United States. Subject to and without waiver of the foregoing General

and Specific Objections, Applicant will produce a witness to testify regarding its Leadership

Investing investment strategy.

Topic No. 20

The role or involvement Applicant has in the management or operations of companies in which it

invests.






because the meaning and scope of “role or involvement” are vague and ambiguous. Applicant

further objects to Topic No. 20 as overbroad, unduly burdensome, not relevant to the claims or

defenses, and not reasonably calculated to lead to the discovery of admissible evidence because

Applicant’s engagement with companies in which it invests (especially with respect to

information that is not visible to consumers or prospective purchasers) is not relevant, material,


Topic No. 21

The role and responsibilities of each of Applicant’s officers, directors, and partners.

Objection to Topic No. 21

Applicant also objects to Topic No. 21 to the extent it calls for information that is

publicly available or equally available to Opposer. Applicant further objects to Topic No. 21

because it calls for responses that are duplicative and cumulative of responses to Interrogatory

No. 29 and information provided in the Declaration of Kanchana Wangkeo Leung, Esq. in

Support of Gilead Capital’s Motion to Amend the Standard Protective Order, dated January 2,

2018. Applicant further objects to Topic No. 21 as not relevant to the claims or defenses.

Subject to and without waiver of the foregoing General and Specific Objections, Applicant will

produce a witness to testify regarding Topic No. 21.

Topic No. 22

Applicant’s policies, practices, and procedures with respect to the retention of electronic and

non-electronic documents, files, correspondence, and emails in general and pertaining to the

Opposition.


Applicant objects to Topic No. 22 as not relevant to the claims or defenses. Applicant

responds that it has policies and procedures in place to retain documents for 5 years or more in

compliance with applicable law and that it has a litigation hold is in place pertaining to the

Opposition. Applicant has asserted several objections to each of Opposer’s discovery requests.

If Opposer believes documents have not been produced due to spoliation, rather than being

withheld based on an objection, Opposer can raise it at that time.

Topic No. 23

All persons whom Applicant intends to rely upon as affirmative fact witnesses in the Opposition,

and the facts or subject matter about which each such witness is expected to testify.


Applicant objects to Topic No. 23 because it calls for responses that are duplicative or

cumulative of Applicant’s initial disclosures. Subject to and without waiver of the foregoing


23.

Topic No. 24

All allegations and denials that Applicant asserts and intends to assert in this Opposition,

including but not limited to those set forth in Applicant’s Answer and Counterclaim.


Applicant objects to Topic No. 24 as overbroad, unduly burdensome, not relevant to the

claims or defenses, and not reasonably calculated to lead to the discovery of admissible evidence

because there is no operative counterclaim. Applicant also objects to Topic No. 24 as calling for

responses that are duplicative or cumulative of responses to Interrogatory Nos. 33, 34, 35, and

36. Subject to and without waiver of the foregoing General and Specific Objections, Applicant

will produce a witness to testify regarding the allegation and denials that Applicant asserts or

intends to assert in this Opposition.

Topic No. 25

The documents Applicant has produced or will produce in this Opposition relating to the topics

herein as to which the witness has been designated.



particularity the matters for examination, including, but not only, because it is unclear what

information about produced documents that Opposer seeks. Applicant objects to Topic No. 25 as

overbroad and unduly burdensome as it would necessitate the preparation of the witness to be

knowledgeable about hundreds of documents and potentially the entirety of Applicant’s

document production, which may be construed as “related to” any of 26 topics in this Notice.

Topic No. 26

The specimens of use submitted to the USPTO in support of the applications for the GILEAD

CAPITAL Mark and the GILEAD CAPITAL LEADERSHIP INVESTING Mark.


Applicant objects to Topic No. 26 to the extent it calls for information protected by the

attorney-client privilege, work product immunity, or any other privilege or immunity from




Supporting Exhibits

EXHIBIT 17

Fish & Richardson P.C. 500 Arguello Street Suite 500 Redwood City, CA 94063-1526

650 839 5070 main 650 839 5071 fax

Lisa Greenwald-Swire Principal [email protected] 650 839 5198 direct

VIA EMAIL

March 28, 2018


Gilead Capital, LP

157 Columbus Ave., Suite 403

New York, NY 10023

[email protected]

Re: Deficiency Notice RE: Gilead Capital LP’s Responses to Gilead Sciences, Inc.’s First Sets of Document Requests, Requests for Admissions and Interrogatories

Opposition Nos.: 91233311, 91233327

Our Ref.: 36583-0044PP1

Dear Ms. Leung,

I am writing in reference to Gilead Capital LP’s (“GCL’s”) deficient responses to Gilead Sciences, Inc.’s (“Gilead’s”) first sets of document requests, requests for admissions, and interrogatories. The issues with GCL’s responses were numerous. While this correspondence will

address the most prominent and egregious deficiencies, it is without prejudice to Gilead’s rights to raise other deficiencies in our meet-and-confer or in a motion to compel. We request that GCL

issue amended responses to Gilead’s discovery requests on or before April 11, 2018, or Gilead will

be forced file one or more Motions to Compel.

I. Improper Reliance on Boilerplate General Objections

At the outset, all of GCL’s responses to Gilead’s discovery requests are made subject to

general, boilerplate objections that lack any specificity or analysis. This is improper. All grounds

for objection must be made with specificity.1 Simply listing two dozen boilerplate objections at

the beginning of the responses does not provide Gilead with sufficient information to evaluate the

validity and completeness of GCL’s responses. Therefore, we demand that GCL provide amended responses to all of the discovery requests to omit these improper objections and provide a specific,

particularized ground for any requests for which GCL cannot reasonably respond.

1 See e.g., Fed. Rule Civ. P. 33(b)(4); Deere v. American Water Works Co., Inc., 306 F.R.D. 208, 215 (S.D. IN. 2015)

(“general objections are entitled to little if any weight”). See also, Henry v. Champlain Enterprises, Inc., 212 F.R.D.

73, 78 (N.D.N.Y. 2003) (wholesale objections are improper, and may result in an imposition of sanctions against the

responding party).


March 28, 2018

Page 2

II. Objections as to Confidential or Proprietary Information

GCL’s responses to Gilead’s first set of document requests, requests for admissions, and interrogatories included improper objections on the ground that the information sought was

confidential, proprietary, or of a highly sensitive nature. We see this objection in the General

Objections recited at the beginning of each set of responses, and in response to thirteen specific

requests, such as Document Request Nos. 8, 12, 14-15, 20, and 24, and Interrogatory Nos. 6, 7, 9-

11, 13, and 16.

Upon the resolution of GCL’s Motion to Amend the Standard Protective Order, Gilead

expects GCL to promptly and fully respond to all discovery requests consistent with the terms of

whatever protective order is ultimately entered. See, e.g., Triforest Enters., Inc. v. Nalge Nunc

Int’l Corp., Opp. No. 91-165,809, 2008 WL 885892, at *2 (T.T.A.B. Jan. 31, 2008) (holding that

an objection based on confidentiality is improper when a protective order is already in place).

III. The Refusal to Respond to Requests “As Posed”

In response to many of Gilead’s first set of discovery requests, GCL asserts a laundry list of objections and states that the Request “is incapable of a response as posed.”2 In some cases,

GCL nevertheless goes on to provide a response. In others, it does not. This is clearly problematic.

First, the “as posed” objections are typically accompanied by distortions of the plain

meanings of words and other semantic evasions that strain credibility. For example, Request for

Admission No. 4, asks a straightforward question: “Admit that the GILEAD portion of Applicant’s Marks [as defined] is identical to Opposer’s GILEAD trademark.” GCL’s response is an exercise

in evasion:

Applicant objects to this Request as vague, ambiguous, and incomprehensible

because “Opposer’s GILEAD trademark” is not defined, and Opposer’s Notices of Opposition specifically identify three registered trademarks that are the basis for

the Oppositions (U.S. Registration No. 3604505, U.S. Registration No. 4279898,

and U.S. Registration No. 3251595). It is unclear to which trademark this Request

refers. Applicant also objects to this Request as compound because Applicant has

two trademarks. Pursuant to Fed. R. Civ. P. 36, each matter must be separately

stated. As a result, this Request is incapable of a response as posed.

2 See e.g., Request for Admission Nos. 1-6, 9, 11, 14, 19, and 21-28; Interrogatory Nos. 12, 15, and 19.


March 28, 2018

Page 3

In other words, GCL contorts a simple question as to whether the Parties’ marks share the same word into a complicated, multi-part question that is somehow compound. As you know,

Gilead has only asserted claims in this proceeding based on its trademarks for the word GILEAD;

and indeed GCL references in its objection three trademark registrations all for the same mark –

GILEAD in standard characters. Yet GCL claims not to know which Gilead trademark is at issue.

Similarly, Request for Admission No. 9 asks GCL to admit that it invests in companies

providing goods or services related to healthcare. GCL responds in part:

Applicant objects to this Request as vague, ambiguous, overbroad, and

incomprehensible because the scope of the phrase “related to healthcare” is unclear and could be construed to include numerous types of goods and services with an

indirect or tangential relationship to human health. In addition, this Request is

vague and ambiguous with respect to whether the Request seeks an admission

regarding Applicant’s actual investments or the types of investments that are permitted under its investment strategy. As a result, this Request is incapable of a

response as posed.

If GCL truly believes that the terms “related to healthcare” and “invests” are unclear, vague and ambiguous in the context of these proceedings, the TTAB is unlikely to find that position

justifiable. Respondents are expected to exercise reason and common sense when responding to

discovery requests. See e.g., Pulsecard, Inc. v. Discover Card Services, Inc., 168 F.R.D. 295, 310

(D. KS 1996). Further, it is not proper to object to a Request for Admission on the grounds that it

is “ambiguous” unless it is so ambiguous that GCL cannot, in good faith, provide an intelligent

reply. See e.g., Marchand v. Mercy Med. Ctr., 22 F.3d 933, 938 (9th Cir. 1994).

We see similar issues with this statement in the Interrogatory responses. Interrogatory No.

12 asks GCL to describe the facts and circumstances under which GCL first became aware of

Gilead. GCL objects that the words “facts” and “circumstances” are vague and ambiguous.

Interrogatory No. 15 asks GCL to identify the date when it first rendered each of the services listed

in the opposed applications to a consumer. GCL objects as to the terms “rendered” (a term used

in definition of “use in commerce” in the Lanham Act) and “consumer,” and asserts that the

Interrogatory is compound because:

The services cited in Applicant’s Services incorporate numerous activities, including but not limited to, researching potential investments, financial

modeling, asset allocation strategies, trading, portfolio management, and


March 28, 2018

Page 4

implementing the infrastructure and relationships needed for each of the

foregoing.

(Emphasis added). Yet, none of the above-emphasized “activities” are services described in the opposed applications. Such semantic games will not find a sympathetic ear at the TTAB.

Second, Gilead is unable to determine whether a response that is so qualified is complete

and accurate. Asserting that GCL is “incapable” of responding to a Request while simultaneously providing a response is internally inconsistent on its face, and it does not provide Gilead with the

information it is entitled to under the laws and regulations applicable to discovery.

Third, in the context of the Requests for Admissions, the “incapable of a response” language is followed by a denial, which in many cases, seems untruthful. For example, GCL’s response to Interrogatory No. 12 states that GCL’s founders were aware of Gilead before they formed GCL.3 Yet, in response to Request for Admission No. 2, GCL denies being aware of the

GILEAD trademark before May 24, 2016—the filing date for the GILEAD CAPITAL marks, and

roughly five months after GCL’s formation. In response to Request for Admission No. 3, GCL

denies that the word CAPITAL is generic or merely descriptive in the context of Applicant’s Services, even though GCL submitted a disclaimer for that term in both of the trademark

applications at issue.4

Either GCL can respond to the requests, or it cannot. We insist that GCL amend its

responses to Gilead’s first set of discovery requests to provide responses to each and every request,

based on the plain and ordinary meanings of the words used.

3 See GCL’s Responses to Gilead’s First Set of Interrogatories at p. 15 (“Applicant was founded by professional investors who were and are aware of the existence of numerous publicly-traded companies, including Opposer.”). 4 GCL also denies that: (1) the GILEAD portion of its trademarks is identical to the GILEAD trademark used by

Gilead [Request for Admission No. 4]; (2) GCL’s investors include institutional and individual investors [Request for Admission Nos. 5-6]; (3) GCL invests in companies that provide goods or services related to healthcare [Request for

Admission No. 9]; (4) GCL communicates with entities it targets for investment on letterhead bearing the GCL logo

[Request for Admission No. 11]; (5) GCL or its agents have been on the board of directors for a company in which

GCL invested [Request for Admission No. 13]; (6) GCL’s FINRA registration was not effective until at least January 27, 2016 [Request for Admission No. 17]; (7) GCL was registered to do business in New York on February 5, 2016

[Request for Admission No. 20]; (8) GCL invests in companies that compete directly or indirectly with Gilead, or

provide goods/services related to the goods/services provided by Gilead [Request for Admission Nos. 29-30].


March 28, 2018

Page 5

IV. Facially Incomplete Responses to Document Requests and Interrogatories

There are numerous Document Requests and Interrogatories for which GCL provides no

response or only a partial response.5 For example, in response to Interrogatory No. 2, GCL states

that a clearance analysis was performed on the opposed marks. However, we have received no

clearance reports in the document production files, and there are no documents or other

information reflecting any third-party clearance reports being provided to GCL.

Similarly, Interrogatory No. 3 requested information regarding the factors GCL’s founders

considered when adopting the GILEAD CAPITAL trademark. Despite the statement in response

to Interrogatory No. 2 regarding “investigations or clearance analyses conducted on the marks,” GCL states that the only factor its founders considered when adopting the GILEAD CAPITAL

mark was the familial significance of Gilead, Nebraska to Jeffrey Strong. Similarly, GCL does

not identify persons it has considered for investment (Interrogatory No. 9), companies GCL has

invested in (Interrogatory No. 10), or licenses GCL has obtained that relate to the provision of its

services in interstate commerce (Interrogatory No. 19). These are clearly deficient responses.

Accordingly, we demand that GCL provide full and complete responses to all discovery requests,

including without limitation the requests enumerated in footnote 5 to this correspondence.

V. Objections Regarding the “Relevant Time Period”

Throughout GCL’s responses to Gilead’s first set of discovery requests, we see persistent

assertion of objections as to the temporal scope of the requests. For instance, each set of responses

includes a General Objection that unilaterally defines the “Relevant Time Period” for the responses as the fourteen months between January 15, 2016, and March 8, 2017. Objections as to the

temporal scope are also raised in individual responses, including the responses to Document

Request Nos. 5-6, 9-21, and 24-27, Interrogatory Nos. 6-11, 13, 17, and 19, and Request for

Admission Nos. 5-13, 22-25, and 27-30. Notably, although GCL defines the Relevant Time Period

as just shy of 14 months in 2016 and 2017, you seek to hold Gilead to a far higher standard. Your

March 23 deficiency letter demanded that Gilead produce documents from around the world since

Gilead’s formation in 1987.

According to the Delaware Department of State, GCL was formed on January 12, 2016.

However, the Specimen of Use submitted for both applications claims that the firm was created in

2015, and it includes a statement that the information reflected on the specimen is accurate as of

September 17, 2015. Moreover, according to the Delaware Department of State, GCL’s General Partner, Gilead Capital GP LLC, was formed on April 3, 2014. For purposes of these discovery

5 See e.g., Document Request Nos. 21, 23, 25; Interrogatory Nos. 2-3, 7, 9-10, 19.


March 28, 2018

Page 6

requests, the relevant time frame must include any point at which GCL or its agents undertook

activity involving the selection, adoption, registration and/or use of the GILEAD CAPITAL or

GILEAD CAPITAL LEADERSHIP INVESTING marks. Based on publicly available records,

this must be at least as early as April 3, 2014, and likely before that date unless the Gilead name

was created, cleared, selected, and adopted all on the same date.

As for the end of the Relevant Time Period, the idea that the filing of an Opposition

represents the cutoff point for relevant information on likelihood of confusion is without basis in

law or reason. By its very name, likelihood of confusion suggests an ongoing condition. It is well-

established that evidence bearing on likelihood of confusion that occurs up to the time of trial is

admissible. See 3 McCarthy on Trademarks and Unfair Competition § 20:15 (5th ed.) citing R.J.

Reynolds Tobacco Co. v. American Brands, Inc., 493 F.2d 1235, 1238, 181 U.S.P.Q. 459 (C.C.P.A.

1974); Patsy's Italian Rest., Inc. v. Banas, 575 F. Supp. 2d 427 (E.D.N.Y. 2008) (“[I]t is generally proper to consider evidence of likelihood of confusion occurring after the date that a party submits

its application for trademark registration.”). See also, TBMP § 408.03 (noting that respondents

have a duty to supplement discovery responses pursuant to Fed. Rule Civ. P. 26(e)). Therefore,

we demand that you provide amended responses to Gilead’s first set of discovery requests, adjusting the Relevant Time Period to extend from April 3, 2014, to present, unless the request or

context suggests otherwise.

VI. Objections Regarding the Geographic Scope of the Requests

Another issue throughout GCL’s responses is the frequent assertion of objections as to

geographic scope. Specifically, each set of responses includes a General Objection that GCL “will not provide responses regarding or related to non-U.S. persons or non-U.S. activities.” There are

similar objections in response to specific requests, including Interrogatory Nos. 6-11, 13, 15-17,

and 19. It is not entirely clear what you mean by “non-U.S. persons or non-U.S. activities,” or what exactly is being withheld on these grounds.

The Lanham Act is constitutionally limited to commerce that is subject to regulation by

Congress. This is not limited, however, to activities occurring within the boundaries of the United

States. It includes, for example, commerce between the United States and foreign countries. See

15 U.S.C. § 1127 (defining “commerce” as “all commerce which may lawfully be regulated by

Congress,” and stating that “use in commerce” may be found for services where, inter alia, “the

services are rendered … in the United States and a foreign country”). Activities involving the

investment of U.S. funds, for U.S. customers, in foreign companies are relevant to these

proceedings, as they involve the provision of GCL’s services in U.S. commerce. Additionally, activities involving the investment of funds for residents of any country into U.S.-based companies


March 28, 2018

Page 7

or into foreign companies that transact business in the U.S. are relevant to these proceedings, as

again, they involve the provision of GCL’s services in U.S. commerce. Therefore, GCL must

clarify the nature of this objection, and amend the responses as needed to reflect GCL’s use of the GILEAD CAPITAL trademarks in Commerce as that term is defined in the Lanham Act.

VII. Objections to Terminology

GCL’s responses to Gilead’s First Set of Discovery Requests are rife with objections to terminology. We see boilerplate objections to nearly every defined term in the Discovery

Requests.6 A number of these objections are patently frivolous:

1. Related: We used the exact same language that appeared in GCL’s first set of discovery requests.

2. Applicant: We used a standard definition that is highly similar in wording and identical

in substance to how GCL defines “Opposer” in its first set of discovery requests.

3. Applicant’s Services: We defined “Applicant’s Services” as “the services identified

in Application Serial Nos. 87/048,887 and 87/048,941.”

4. Opposer’s Mark: This is defined as the word GILEAD. GCL’s general objections state in part: “Applicant objects to the definition of ‘Opposer’s Mark’ because the

definition assumes facts not in evidence and erroneous legal conclusions. The word

‘Gilead’ by itself is not a trademark, and Opposer does not have universal trademark

rights in the word ‘Gilead.’” Such a response betrays either bad faith or a fundamental

lack of understanding of trademark law.

GCL’s objections to definitions that: (a) refer to objective external sources; and/or (b) track

GCL’s own definitions, are without support in law or practice and raise the inference of bad faith.

GCL also raised frivolous objections to simple, plain English words, such as

“involvement,” “participation,” and “customer.” In those cases, GCL specifically objected because those terms were undefined.7 A good example is Request for Admission No. 3, which

states:

6 For instance, we see objections to the terms “License,” “Adoption,” “Agreements,” “Analysis,” “Confusion,” “Conference,” “Corporate Structure,” “Marketing Activities,” and “Opposer’s Mark.” 7 For instance, we see objections to terms like “descriptive” and “generic” (Request for Admission No. 3); “investor” (Request for Admission Nos. 5-6); “healthcare industry” or “healthcare space”) (Request for Admission Nos. 7-8; 27-

28; Document Request No. 20); “related to healthcare” (Request for Admission No. 9); “target for investment” (Request for Admission No. 11, Document Request Nos. 14-15); “connection” or “affiliation” (Request for Admission No. 25); “actively providing” (Request for Admission No. 26); “involved in the management” or “involved in the


March 28, 2018

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REQUEST NO. 3

Admit that CAPITAL is a generic or merely descriptive term in the context of


(emphasis added). GCL objected that the terms “generic” and “descriptive” are vague and ambiguous because a word cannot be generic or descriptive in isolation. However, the above-

emphasized language specifically provided the context—“Applicant’s Services,” which were defined by reference to the trademark applications that are the subject of these proceedings.

Respondents must exercise reason and common sense when responding to discovery

requests. See e.g., Pulsecard, 168 F.R.D. at 310; Cadbury UK Ltd. v. Meenaxi Enter., 115

U.S.P.Q.2d 1404 (Trademark Trial & App. Bd. July 21, 2015) (stating that “the Board expects each party to every case to use common sense and reason” when responding to discovery requests). It is not proper to object to a Request for Admission on the grounds that it is “ambiguous” unless it is so ambiguous that GCL cannot, in good faith, provide an intelligent reply. See e.g., Marchand

v. Mercy Med. Ctr., 22 F.3d at 938. Therefore, Gilead demands that GCL provide amended

responses to its first sets of Document Requests, Requests for Admissions, and Interrogatories to

omit these improper objections and respond completely to the requests.

VIII. Objections as to Relevance

Next, GCL’s responses include excessive and unreasonable objections that the information

sought by the requests is not relevant to the claims or defenses in these proceedings. GCL raises

this in its General Objections at the start of each set of responses, as well as in response to specific

requests seeking information regarding GCL’s commercial activities.

Pursuant to Fed. Rule Civ. P. 26(b) and TBMP § 402.01, Gilead may obtain discovery

regarding any non-privileged matter that is relevant to either party's claims or defenses. In this

case, Gilead has asserted two claims: false association under 15 U.S.C. § 1052(a) and likelihood

of confusion pursuant to 15 U.S.C. § 1052(d). To that end, Gilead has alleged, inter alia:

1. Gilead has priority in the GILEAD name and trademark;

2. The GILEAD name is synonymous with Gilead’s identity in the marketplace; operations” (Request for Admission Nos. 27-28); “customer” (Document Request No. 8); “promote” or “promoting” (Document Request Nos. 11, 18); “customer base” (Document Request No. 12); “web pages (including social media)” (Document Request No. 18); “role” or “involvement” (Document Request No. 25); “marketed,” “offered,” or “rendered” (Interrogatory No. 6, 13-14); “facts” and “circumstances” (Interrogatory No. 12); and “consumer” (Interrogatory No. 14).


March 28, 2018

Page 9

3. There is overlap in the relevant consumers served by both Parties; and

4. GCL invests in companies that compete directly or indirectly with Gilead.

Likewise, GCL asserted one affirmative defense, namely, that there is no likelihood of

confusion because, inter alia:

1. “Applicant was the first to use the GILEAD CAPITAL LEADERSHIP INVESTING mark in commerce, at least as early as January 15, 2016, for hedge fund investment

services…;”8

2. “Applicant and Opposer rely on dissimilar trade channels that do not overlap;”9 and

3. “The consumers for Applicant’s and Opposer’s goods and services are sophisticated parties.”10

However, GCL asserted relevance objections to discovery requests that seek information

directly related to each of the above issues, including objections to requests regarding:

1. GCL’s Investments in Third Parties.11 The services listed in GCL’s trademark applications are based entirely on investments in third parties, and priority is an issue in this

dispute, so any commercial activities GCL has undertaken under the GILEAD CAPITAL marks

is absolutely relevant to this dispute.

2. GCL’s Marketing Activities.12 Because priority is an issue, any advertising or

promotion GCL has undertaken for the GILEAD CAPITAL brand is relevant to the dispute.

3. GCL’s Role or Involvement in the Companies in which It Invests.13 GCL has

asserted on numerous occasions that it takes an active role in the management and operations of

the “concentrated group of companies.”14 GCL frequently relies on this description of its activities

to argue that there is no likelihood of confusion because the Parties (allegedly) provide dissimilar

services. However, GCL’s hands-on role in the companies in which it invests suggests that its

commercial activities extend beyond mere investment advising. Further, the unique circumstances

of GCL’s active role in target companies may make consumer confusion more likely, particularly

where those portfolio companies compete directly or indirectly with Gilead. Thus, not only are

8 Dkt. 15 at p. 5, ¶ 34.

9 Id. at ¶ 35. 10 Id. at ¶ 36. 11 See e.g., Request for Admission Nos. 7-9; Document Request Nos. 14-15, 20-21; Interrogatory Nos. 9-10. 12 See e.g., Document Request No. 10. 13 See e.g., Request for Admission Nos. 27-28; Document Request Nos. 15, 25. 14 See e.g., Dkt. 4 at ¶ 53.


March 28, 2018

Page 10

GCL’s actual and potential targets for investment relevant to this dispute, but the role or involvement GCL has within those companies is also relevant.

4. GCL’s Legal Authority to Render Applicant’s Services on or before the

Claimed Date of First Use.15 Again, because priority is an issue in this case, whether GCL was

able to provide the investment advisory services that it claimed it was rendering in the subject

trademark applications is relevant to the claims or defenses in the dispute.

As noted above, in this correspondence, we highlight the most salient improper objections

from GCL’s initial responses to Gilead’s first set of discovery requests. However, there are

improper relevance objections in response to nearly every discovery request. In light of the

foregoing, we demand that GCL provide amended responses to Gilead’s first set of discovery requests, omitting any improper relevance objections and providing clear, unambiguous, and

complete responses to each request.

IX. Objections that Requests are Compound

In response to several requests for admissions and interrogatories, GCL asserted

unmeritorious objections that the requests were compound.16 The two most common variations of

objection are objections to requests that seek information regarding Applicant’s Marks (defined to include both of the opposed applications) or Applicant’s Services (defined to include the services listed in both of the opposed applications). Illustrative examples include:


Admit that CAPITAL is a generic or merely descriptive term in the context of



… Applicant also objects to this Request as compound. Pursuant to Fed. R. Civ. P.

36, each matter must be separately stated.

15 See e.g., Request for Admission Nos. 17-18; Document Request Nos. 8, 23-24, 27; Interrogatory No. 19. 16 See e.g., Request for Admission Nos. 3-4, 19, 21, 24, 25, 27, 29-31; Interrogatory Nos. 6, 8, 13-14, 20.


March 28, 2018

Page 11


Admit that the GILEAD portion of Applicant’s Marks is identical to Opposer’s GILEAD trademark.


… Applicant also objects to this Request as compound because Applicant has two trademarks. Pursuant to Fed. R. Civ. P. 36, each matter must be separately stated.

With respect to “Applicant’s Marks,” the applications for GILEAD CAPITAL and GILEAD CAPITAL LEADERSHIP INVESTING (U.S. Serial Nos. 87048887 and 87048941)

were filed on the same day (May 24, 2016) and they recite the same dates of first use and first use

in commerce (January 15, 2016). The words “GILEAD CAPITAL” are the same in both marks. Both applications include a disclaimer of CAPITAL as a merely descriptive or generic term.

Because the relevant facts surrounding both marks are the same, these requests are not compound.

These commonalities were why the TTAB consolidated these opposition proceedings. GCL’s artificial insistence on treating the shared elements of these marks separately serves to impose

unnecessary costs and burdens on the parties and to frustrate the purpose of the consolidation order.

Likewise, examples of the compound objections to “Applicant’s Services” include:


Admit that as of January 15, 2016, Applicant did not have legal authority to provide

every service listed in Applicant’s Services.


Applicant objects to this Request as seeking a legal conclusion. Applicant also

objects to this Request as vague, ambiguous, and compound because “Applicant’s Services” is defined to include multiple services and the Request seeks information about every service. Pursuant to Fed. R. Civ. P. 36, each matter must be separately

stated.


State the date when Applicant first rendered each of the services recited in

Applicant’s Services to a consumer.


March 28, 2018

Page 12


Applicant objects to this Interrogatory as compound. The services cited in

Applicant’s Services incorporate numerous activities, including but not limited to,

researching potential investments, financial modeling, asset allocation strategies,

trading, portfolio management, and implementing the infrastructure and

relationships needed for each of the foregoing.

In both of these examples, GCL makes a bad faith attempt to deflect simple,

straightforward requests by dissecting Applicant’s Services. In fact, with Interrogatory No. 15,

GCL recites a number of activities that are not listed in the identification of services for the two

GILEAD CAPITAL trademark applications. GCL cannot simply redefine its services to avoid

responding to straightforward requests that reference GCL’s own trademark applications.

These instances and the other “compound” objections that appear throughout GCL’s responses to Gilead’s discovery requests are improper and unmeritorious. Therefore, Gilead demands that GCL provide amended responses to the discovery requests that remove these

objections and recite clear, unambiguous answers.

X. Privilege Log

Lastly, throughout the responses to Gilead’s first set of discovery requests, GCL asserts that the information or documentation sought is privileged or attorney work product. We request

that GCL provide a privilege log with sufficient information to enable Gilead to determine whether

the assertions of privilege are meritorious. See TBMP § 406.04(b); Fed. Rule Civ. P. 26(b)(5).

XI. Conclusion

“The Board expects parties (and their attorneys or other authorized representatives) to

cooperate with one another in the discovery process.” See TBMP § 408.01 citing, inter alia,

Cadbury UK Ltd. v. Meenaxi Enter., Inc., 115 U.S.P.Q.2d 1404, 1408 (TTAB 2015) (“The Board expects each party to every case to use common sense and reason.”) citing Haney v. Saldana, No.

1:04-cv-05935, 2010 U.S. Dist. LEXIS 93447, 2010 WL 3341939, at *3 (E.D. Cal. Aug. 24, 2010)

(granting a Motion to Compel and ordering the respondent to “use common sense and reason,” stating that “hyper-technical, quibbling, or evasive objections will not be treated with favor”).

As stated above, the foregoing does not represent an exhaustive list of the deficiencies in

GCL’s discovery responses, and Gilead reserves its rights to object to all such deficiencies and


March 28, 2018

Page 13

seek appropriate relief from the Board. We will discuss these issues with you during the meet-

and-confer call scheduled for March 28, and look forward to your cooperation.

Sincerely,





Supporting Exhibits

EXHIBIT 18

1

From: Robert O'Connell Jr.Sent: Monday, May 14, 2018 1:44 PMTo: [email protected]: Lisa Greenwald-Swire; APS Outgoing; Jon JekelSubject: GILEAD Trademark Opposition -- Narrowed Issues List re Discovery -- F&R Refs.

36583-0044PP1 & 36583-0045PP1

Follow Up Flag: Follow upFlag Status: Flagged

Categories: 2. Moderate Urgency (Today)

Dea Ka h: We ha e e ie ed o e agai ou espo ses to ou fi st sets of dis o e e uests, a d o side ed ou o e ts i ou e e t eet‐a d‐ o fe all. I a effo t to a o the issues i dispute, hat follo s is a o e ta geted list of spe ifi ite s he e e e ui e a o st u ti e espo se f o Gilead Capital. If e a e a le to satisfa to il esol e the follo i g atte s, it ill go a lo g a to a d o iati g the eed fo a dis o e otio s o ou pa t. The fi st a d last poi ts elate to all ou espo ses ge e all ; the e ai i g ite s, ou ill see, elate to spe ifi e uests/ espo ses.

As dis ussed i ou all, the e is o asis fo ou u ilate al defi itio of the Rele a t Ti e Pe iod as Ja ua , th ough Ma h , . Rele a t do u e ts a d i fo atio i a t ade a k dispute ofte if ot

al a s o e i to e iste e p io to the fi st use of the disputed a k – pa ti ula l e ide e elated to the sele tio a d lea a e of the a k i uestio . Mo eo e , the e is a ple TTAB ase la to the effe t that a pa t ’s o ligatio to supple e t dis o e espo se is o goi g, a d the Boa d ill o side e ide e a isi g up to the date of t ial. Gi e that Gilead Capital has o l ee i e iste e fo less tha fi e ea s, the e is o ha dship i the p odu tio of do u e ts a d e ide e f o the o igi of the a e th ough the p ese t da . We a ot a ede to a a tifi ial a o i g of the so‐ alled Rele a t Ti e Pe iod.

I ou espo se to Do u e t Re uest No. a o g othe s , ou i di ate that ou ill p odu e do u e ts suffi ie t to ide tif the pool of actual and potential clients to hi h Appli a t’s Se i es e e offe ed o p o ided. Ki dl la if this la guage, the itali ized po tio i pa ti ula . Ho ill this pool e ide tifia le? Will a tual lie ts e disti guisha le f o pote tial lie ts?

You ha e efused to p odu e a do u e ts i espo se to Do u e t Re uest No. . We ould e illi g to li it this e uest to do u e ts sufficient to identify all those o pa ies that Appli a t has esea hed as a pote tial ta get fo i est e t. This i fo atio is ot p i ileged, a d it is e tai l ele a t i as u h as it ill sho the e te t to hi h oth pa ties a e ta geti g the sa e o si ila o pa ies fo thei i est e ts. Please i di ate if ou ill p odu e do u e ts espo si e to this a o ed e uest. We p opose the sa e o p o ise ith espe t to Do u e t Re uests Nos. a d .

Do u e t Re uest No. asks fo Do u e ts Related to a Co fe e es Appli a t has atte ded. I ou espo se, ou i di ate that ou ill p odu e do u e ts elated to apital i t odu tio o fe e es. Please e plai the asis fo this u ilate al li itatio . If the e a e o othe o fe e es hi h ep ese tati es of Gilead Capital atte d, please sa so.

You ha e efused to p odu e a do u e ts espo si e to Do u e t Re uest No. , hi h asks fo do u e ts elati g to ou do u e t ete tio /dest u tio poli ies. This is a e o o e uest p opou ded i i tuall e e i il ase, as do u e t ete tio a d dest u tio poli ies ofte a e plai h a pa t a o a ot ha e do u e ts to p odu e o a gi e topi o f o a gi e ti e pe iod. We e pe t ou to e o side ou espo se to this e uest.

2

You ha e efused to p odu e a do u e ts espo si e to Do u e t Re uest No. , hi h asks fo do u e ts elati g to ou o po ate st u tu e. Su h ate ials a e lea l ele a t a d dis o e a le; a o g othe thi gs, the ould e likel to ide tif it esses ha i g k o ledge of fa ts ele a t to the ase. We e pe t ou to e o side ou espo se to this e uest.

You ha e efused to p odu e a do u e ts espo si e to Do u e t Re uest No. , hi h asks fo e tai o ‐i te al do u e ts hi h e ide e the deg ee of Gilead Capital’s a age e t/ope atio al i ol e e t i

the o pa ies i hi h it i ests. This i fo atio is ot p i ileged a d lea l dis o e a le. The deg ee to hi h Gilead Capital pe so el a e i ol ed i the a age e t a d ope atio s of its po tfolio o pa ies is ele a t to the e te t that Gilead Capital has i ested i o pa ies i the pha a euti al o elated i dust ies.

You ha e efused to p o ide a i fo atio i espo se to I te ogato No. , hi h is si ila to Do u e t Re uest No. dis ussed a o e. The ide tities of Gilead Capital’s i est e t ta gets is highl ele a t to this ase to the e te t that those o pa ies a e i the pha a euti al a d elated fields. We e pe t a full espo se to this i te ogato .

The sa e is t ue fo I te ogato No. . You ha e lai ed a i a ilit to espo d to I te ogato No. , hi h si pl asks fo the date s o hi h ou

fi st offe ed ea h of the se i es lai ed i the opposed t ade a k appli atio s. You ha e o je ted to this i te ogato as o pou d. We do ot ag ee to this ha a te izatio , ut e e if su h a o je tio e e sustai ed, that ould o l go to the u e i g of the I te ogato ies e a e still ell u de the li it a d ot to ou o ligatio to a s e it. You ha e also o je ted that the se i es at issue i o po ate a othe a ti ities; this is disi ge uous, as e ha e o l asked ith espe t to those se i es listed i the appli atio s. At otto , this i fo atio is pa t of the dilige e hi h e e t ade a k appli a t ust do i o de to sig a

fede al t ade a k appli atio a d the e is o legiti ate asis fo ithholdi g it. We e pe t a full espo se to this i te ogato .

Si ila l , ou ha e lai ed a i a ilit to espo d to I te ogato No. , hi h asks fo go e e tal a d othe li e ses hi h Gilead Capital has o tai ed hi h elate to the se i es at issue. Agai , e eje t the lai that this i te ogato is o pou d, ut e e if it is, that does ot o iate ou o ligatio to espo d. This i fo atio is ele a t to the t uth of the de la atio s set fo th i ou t ade a k appli atio s, as ell as to the s ope of the se i es a tuall e de ed ou o pa . We e pe t a full espo se to this i te ogato .

Fi all , e ote that ou espo ses to the i te ogato ies a e ot e ified. As ou ust k o , a s e s to i te ogato ies should e e ified as to the fa ts dis losed a pe so ha i g fi st‐ha d k o ledge of those fa ts, a d sig ed ou sel as to o je tio s. Ki dl p o ide a p ope e ifi atio of ou espo ses.

We a k o ledge that ith espe t to so e of the disputed ite s, ou espo ses a d p odu tio ill depe d i pa t upo the e t the Boa d of a app op iate p ote ti e o de . If a d he the Boa d ules o ou otio a d e te s a p ote ti e o de , e e pe t p o pt o plia e ith all outsta di g o ligatio s – i ludi g those listed a o e he e ou ha e efused to espo d o p odu e at all, i espe ti e of the p ote ti e o de issue. As oted a o e, the fo egoi g is ot a e hausti e list of all of ou issues ith espe t to ou dis o e espo ses, all of hi h a e e p essl ese ed. But it is i te ded as a good faith atte pt to a o atte s i dispute a d hopefull

eli i ate the eed fo otio p a ti e. O e ou ha e had a oppo tu it to e ie the fo egoi g issues list, please get a k to us at ou ea l o e ie e ith ou espo se s . We look fo a d to hea i g f o ou.

Tha k ou, ‐‐ Bo Robert M. O'Connell, Jr. :: Of Counsel :: Fish & Richardson P.C. One Marina Park Drive, Boston, MA 02210-1878 617 368 2159 direct :: [email protected] fr.com :: Bio :: LinkedIn :: FishTMCopyrightblog.com




Supporting Exhibits

EXHIBIT 19

1

From: Kanchana W. Leung <[email protected]>Sent: Wednesday, May 23, 2018 9:01 AMTo: Robert O'Connell Jr.Cc: Lisa Greenwald-Swire; APS Outgoing; Jon JekelSubject: RE: GILEAD Trademark Opposition -- Narrowed Issues List re Discovery -- F&R Refs.

36583-0044PP1 & 36583-0045PP1

Bo : I’ ese di g as I had espo ded to the o g e ail hai . Ka h *********** Dea M . O’Co ell: I espo se to ou e ail, e espo d as follo s:

Rele a t Ti e Pe iod. As e dis ussed o ou eet a d o fe all, Gilead Capital ill ot e a e di g the sta t date of the Rele a t Ti e Pe iod e ause e espe t the o po ate fo a d Gilead Capital did ot ha e a a hi i g s ste i pla e p io to its fo atio . If the e a e e ail hai s that aptu e o u i atio s p io to the Rele a t Ti e Pe iod, e ill p odu e the hole hai . Ho e e , e ill ot take e t ao di a easu es to t to o tai o et ie e do u e ts efo e Gilead Capital as fo ed. As fo the e d date, e

e plai ed that pa ties i litigatio usto a il e d do u e t olle tio at the o e e e t of the a tio e ause do u e ts ele a t to the litigatio ge e ated afte the date a e likel to e p i ileged. Fu the o e,

it is u de so e a d dis upti e to a usi ess to e e ui ed to do o ti uous e‐ ail s eeps u til the ti e of t ial. It is si pl ot p opo tio al to the eeds of the ase, o side i g the li ited s ope of oppositio p o eedi gs, the fa t that the e is o da ages at stake, a d the s all size of ou fi . At the sa e ti e, e ha e said that the e d date is ot a ha d stop date ut ea s o the easo a le ess of ou sea h; e ill p odu e so e do u e ts that e te d e o d that date to the e te t the a e ot u de so e to p odu e. Fo e a ple, e ill p odu e a keti g ate ials used afte the date the a tio o e ed. As ou k o , the dut to supple e t is a dut to supple e t if a pa t lea s that i so e ate ial espe t the dis losu e o espo se is i o plete o i o e t a d if the additio al o o e ti e i fo atio has ot othe ise ee ade k o to the othe pa t du i g dis o e . It is does ot ea that pa ties get ope ‐e ded dis o e u til the date of t ial. If ou ha e o t a autho it , please p o ide it a d e a e o side .

Do u e t Re uest No. . As oted i ou o je tio s, e tai i fo atio ega di g Gilead Capital’s lie ts, i ludi g ide tities, a e su je t to o fide tialit p o isio s a d a ot e dis losed u de the i u sta es of this ase. We ill e p odu i g e ail o u i atio s ith a tual a d pote tial i esto s i o e tio ith Gilead Capital’s a keti g effo ts a d, to the e te t the e ist, do u e ts that list a tual a d pote tial i esto s. You a e a le to dete i e ho the a tual i esto s a e.

Do u e t Re uest Nos. , , . We o je ted to these e uests e ause, a o g othe easo s, the i fo atio sought a out Gilead Capital’s i est e ts is ot ele a t to the lai s o defe ses i the p o eedi g. The a ks ited Oppose as the asis fo its Oppositio a e U.S. Regist atio Nos. ,

, a d . We do ot see ho Gilead Capital’s i est e ts o pote tial i est e ts o ehalf of its lie ts is ele a t to a of the DuPo t fa to s, espe iall ith espe t to GSI’s e uests that all fo i fo atio a out Gilead Capital’s a ti ities that a e ot isi le to o su e s a d p ospe ti e pu hase s. These e uests see ed desig ed to ha ass a d a o as a ad iso ’s i est e ts a d esea h p o ess a e highl p op ieta . No etheless, e a e illi g to eet a d o fe ith ou o this issue to ette u de sta d GSI’s theo of ele a e.

2

Do u e t Re uest No. . As e o je ted, GSI’s e uest is o e oad a d ot easo a l al ulated to lead to the dis o e of ad issi le e ide e. Capital i t odu tio o fe e es a e ele a t to the t ade ha els used

Gilead Capital. We fail to see ho o fe e es ge e all a e ele a t to a of the othe fa to s to e o side ed i assessi g GSI’s lai s. We ill a e illi g to eet a d o fe ith ou o this topi to u de sta d to hi h ele e ts of the lai s GSI elie es this e uest elates.

Do u e t Re uest No. . Although it a e o o fo pa ties to e uest do u e t ete tio poli ies, it does ’t ake the e uest ele a t to a lai o defe se. GSI’s e uest is ot ele a t to a lai s o defe ses i this a tio . Gilead Capital has asse ted se e al o je tio s to ea h of GSI’s e uests. If GSI elie es do u e ts ha e ot ee p odu ed due to spoliatio , athe tha ei g ithheld ased o a o je tio , GSI a aise it at that ti e. We de li e to e o side ou espo se.

Do u e t Re uest No. . Agai , o e of Gilead Capital’s o je tio s is that the e uest is ot ele a t to a lai o defe se. As to ou suggestio that GSI eeds the i fo atio to ide tif it esses, GSI al ead has Gilead Capital’s I itial Dis losu es, hi h ide tif pote tial it esses, a d GSI is al ead a a e – i ludi g e ause of pu li SEC fili gs a d Gilead Capital’s state e ts i pape s efo e the TTAB – that Gilead Capital has o l pa t e s o ki g at Gilead Capital. Fu the , GSI a ide tif pote tial it esses e ie i g Gilead Capital’s do u e t p odu tio . We ill ot pe it GSI to e gage i a fishi g e peditio i to Gilead Capital’s i te al affai s a d de li e to e o side ou espo se.

Do u e t Re uest No. . See espo se a o e e Re uest Nos. , , . We a e illi g to eet a d o fe ith ou o this topi ut please e ead to e plai hi h DuPo t fa to to hi h GSI elie es this e uest elates.

I te ogato Nos. , . See espo ses a o e e Re uest Nos. , , , a d . We a e illi g to eet a d o fe .

I te ogato No. . Gilead Capital a e ds its respo se to i lude a o je tio that the I terrogatory is seeki g i for atio that is ot releva t to a lai or defe se. This is the fi st ti e e a e hea i g that GSI a e halle gi g the suffi ie of Gilead Capital’s appli atio . That is ot alleged i the Oppositio . If the e is a

statuto asis fo GSI to halle ge the appli atio a d GSI i te ds to asse t it, GSI ust a e d its oppositio . The statuto ases of the Oppositio a e U.S.C. § d a d U.S.C. § a . GSI a ot e pa d its lai s th ough dis o e e uests. We also sta d ou o je tio that the I te ogato is ague a d a iguous a d a e illi g to eet a d o fe ith ou. As ou k o , a t ade a k appli atio asks fo the date of fi st use of a a k, ot the date s a appli a t fi st sta ted e de i g se i es, as the I te ogato e uests.

I te ogato No. . See espo se a o e e I te ogato No. . We a e illi g to eet a d o fe ith ou ega di g ho this e uest is ele a t to GSI’s lai s a d defe ses, a d to la if hat GSI is aski g fo e ause as I suggested i ou last all, so e of GSI’s e uests do ’t ake se se i the o te t of the fi a ial se i es i dust . E.g., The e is ’t a i est e t ad ise li e se a d i est e t ad ise s a e ’t egulated FINRA.

Ve ifi atio . Atta hed is a Ve ifi atio of Appli a t’s Respo ses a d O je tio s to Oppose ’s I te ogato ies. We’ e so fo the o e sight. We like ise re uest that GSI provide verifi atio s of its i terrogatory respo ses, dated Fe . , 8 a d April , 8.

Best ega ds, Ka h Leu g Fro : Ro e t O'Co ell J . [ ailto:o o ell@f . o ] Se t: Mo da , Ma , : PM To: Ka ha a W. Leu g <Ka ha a@gilead apital. o > C : Lisa G ee ald‐S i e <G ee ald‐S i e@f . o >; APS Outgoi g <APSO@f . o >; Jo Jekel <jekel@f . o > Su je t: GILEAD T ade a k Oppositio ‐‐ Na o ed Issues List e Dis o e ‐‐ F&R Refs. ‐ PP & ‐

PP




Supporting Exhibits

EXHIBIT 20

Fish & Richardson P.C.

One Marina Park Drive

Boston, MA 02210-1878

617 542 5070 main

617 542 8906 fax

Robert M. O'Connell, Jr.

Of Counsel

[email protected]

617 368 2159 direct

September 13, 2018

Via E-Mail to [email protected]


COO, CCO and General Counsel

Gilead Capital, LP

157 Columbus Avenue, Suite 403

New York, New York 10023

Re: Final Deficiency Notice re: Discovery Responses

Gilead Sciences, Inc. v. Gilead Capital LP, Opposition Nos.: 91233311, 91233327

Our Ref.: 36583-0044PP1, 36583-0045PP1

Dear Ms. Leung:

This correspondence concerns the deficiencies in Gilead Capital LP’s (“GCL”) responses to Gilead

Sciences, Inc.’s (“Gilead”) interrogatories, document requests, requests for admissions, and

deposition notices in the above-referenced opposition proceedings.

In brief, GCL has repeatedly refused to provide straightforward responses to Gilead’s discovery

requests. Rather, GCL’s responses are incomplete, evasive and/or subject to meritless objections.

Our March 28 letter, spanning 13 pages, carefully identified the deficiencies in GCL’s responses to Gilead’s first set of interrogatories, document requests, and requests for admissions. Four

months later, we have not received any amended responses, and GCL has produced only 372

documents (many of which are non-responsive or duplicative). Further, many of the same

deficiencies we identified in our March 28 letter appear GCL’s responses to Gilead’s second set of interrogatories, document requests, and requests for admissions, as well as the Rule 30(b)(1)

and 30(b)(6) deposition notices. Below, we identify only the most egregious of these deficiencies.

Please advise whether GCL will correct them before we resort to motion practice.

I. The “Relevant Time Period”

GCL has purported to limit all of its disclosures to a “Relevant Time Period” beginning on January

12, 2016, (GCL’s formation date) and ending on March 8, 2017 (the Opposition filing date).1 For

1 See e.g., The General Objections that preface GCL’s responses to written discovery and 30(b)(6) deposition topics. See also, Document Request Nos. 5-6, 9-21, 24-27; Interrogatory Nos. 6-11, 13, 17, 19; Request for Admission Nos.

5-13, 22-25, 27-30, 35; 30(b)(6) Topic Nos. 2-3, 5.


September 13, 2018

2

example, General Objection #10 to Gilead’s Second Set of Requests for Admissions reads:

Applicant objects to each Request for Admission as vague, ambiguous, overbroad, unduly

burdensome, and not reasonably calculated to lead to the discovery of admissible evidence,

to the extent that it is not limited in time or specify a relevant date for a response. Applicant

will construe the relevant time period for each Request for Admission as January 15, 2016,

the date of first use listed in Gilead Capital’s Application Serial No. 87/048887 and Application Serial No. 87/048941, through March 8, 2017, the date when Opposer

presumably had a reasonable basis for filing its Notice of Opposition sufficient to comply

with Fed. R. Civ. P. 11. (“Relevant Time Period”).2

This artificially small window of time is unreasonable on its face and inconsistent with GCL’s public documents. Priority is at issue in this proceeding, so the circumstances under which GCL

selected, adopted and began using the GILEAD CAPITAL Marks are relevant and discoverable.3

Evidence already in the record establishes that the GILEAD CAPITAL marks were selected prior

to January 12, 2016, given that: (1) the specimen for both applications states, “Firm Inception: 2015;” and (2) GCL’s General Partner (another “Gilead Capital” entity) was formed in 2014.

Activities were clearly being undertaken by, for, or on behalf of the unincorporated association

that would become GCL, in furtherance of the GILEAD CAPITAL brand, before January 12,

2016. Gilead Capital GP LLC’s existence as of April 3, 2014, belies any assertion to the contrary.

As for the March 8, 2017, cutoff date, it is well-established that evidence arising up to the time of

trial is relevant and admissible in likelihood of confusion matters.4 The term “likelihood of

confusion” itself contemplates an ongoing and forward-looking concern. The idea that filing an

Opposition represents a cutoff point for relevant information is without basis in law or reason.

Moreover, given that GCL has implemented a litigation hold, and the period of time in question is

2 See also, General Objection #20 to Gilead’s 30(b)(6) Deposition Notice, which states: “Applicant objects to the time period of the topics. Applicant was formed on January 12, 2016. It cannot bind with its testimony other persons,

including any parent, predecessor, successor, assign, or affiate [SIC] that existed prior to Applicant. Applicant will

construe the relevant time period as January 12, 2016, through the date of service of these objections.” 3 See e.g., TBMP § 414 citing, inter alia, Varian Associates v. Fairfield-Noble Corp., 188 USPQ 581, 583 (TTAB

1975). See also, Estrada v. Telefonos De Mex., S.A.B. de C.V., 447 F. App'x 197 (Fed. Cir. 2011) (“An applicant's bad faith is potentially relevant in the likelihood-of-confusion analysis.”); L.C. Licensing Inc. v. Berman, 86

U.S.P.Q.2d 1883 (TTAB 2008) (evidence of bad faith intent “is strong evidence that confusion is likely”); L'Oreal

S.A. v. Marcon, 102 U.S.P.Q.2d 1434 (TTAB 2012). 4 See 3 McCarthy on Trademarks and Unfair Competition § 20:15 (5th ed.); Estrada, 447 F. App'x at 203 citing R.J.

Reynolds Tobacco Co. v. American Brands, Inc., 493 F.2d 1235, 1238 (C.C.P.A. 1974) (“evidence bearing on the

issue of likelihood of confusion is admissible for the period extending through the latest date permitted by the

procedural rules of the [PTO] for taking testimony and presenting evidence”); Valentino U.S.A., Inc. v. Florence

Fashions (Jersey) Ltd., 2010 TTAB LEXIS 266 (TTAB 2010) (“The Board generally accepts and considers evidence

related to likelihood of confusion for the period up to the time of trial.”).


September 13, 2018

3

not long, compliance will not be burdensome. We therefore insist that GCL produce documents

and evidence up through the time of trial. Please advise whether GCL will comply.

II. Improper Boilerplate Objections

GCL’s responses to written discovery and deposition notices include extensive boilerplate

objections. As noted in our March 28 deficiency notice, objections must be made with specificity.5

GCL’s exercise of listing objections without any explanation is not sufficient.6 We therefore

demand that GCL: (a) issue amended responses to remove the improper boilerplate objections; or

(b) confirm that GCL will not rely on any such objections.

III. Objections to Terminology

GCL’s responses to Gilead’s discovery requests and deposition notices contain extensive

objections to terminology; including defined terms, plain English language, and terms that are

well-understood in trademark law. We addressed that issue in our March 28 deficiency notice, but

GCL has yet to address our concerns, which remain outstanding.

For example, in Gilead’s first set of interrogatories, Interrogatory No. 7 stated: “Describe in detail

any Marketing Activities Applicant undertakes for Applicant’s Services.” GCL responded:

Applicant primarily relies on its partners’ personal and professional networks for

introductions to potential clients. Applicant’s personnel engage directly with the potential clients, including through in-person meetings, telephone calls, and/or providing

written information regarding Applicant’s services. Depending on the type of information and level of detail requested or provided, Applicant and the potential client may enter into

confidentiality agreements restricting disclosure and use of Applicant’s information. In

addition, Applicant has used the capital introduction services of a brokerage firm to

meet potential clients

(emphasis added). In Gilead’s second set of interrogatories, Interrogatory No. 25 stated: “Identify each brokerage or other third party Applicant has used to reach potential clients, as referred to in

Applicant’s responses to Interrogatory Nos. 7 and 17” (emphasis added). Although Interrogatory

No. 25 quoted GCL’s own language almost verbatim, GCL responded with a long string of

objections in order to avoid being held to the plain meanings of its own words:

5 See e.g., Fed. Rule Civ. P. 33(b)(4); Deere v. American Water Works Co., Inc., 306 F.R.D. 208, 215 (S.D. IN. 2015)

(“general objections are entitled to little if any weight”). 6 See e.g., Henry v. Champlain Enterprises, Inc., 212 F.R.D. 73, 78 (N.D.N.Y. 2003) (wholesale objections are

improper, and may result in an imposition of sanctions against the responding party).


September 13, 2018

4

Applicant objects to the definition of “Identify” as unduly burdensome and imposing upon Applicant requirements that extend beyond the Trademark Rules of Practice and the

Federal Rules of Civil Procedure. Applicant objects to this Interrogatory as vague,

ambiguous, overbroad, unduly burdensome, and not reasonably calculated to lead to

the discovery of admissible evidence because “third party” could be construed as any person who is not a partner or employee of Applicant and the term “has used” is ambiguous. Applicant will construe “third party” to include persons that offer services to reach potential clients, but exclude persons within Applicant’s personal and professional networks. Subject to, and without waiver of, the foregoing General and


Applicant has used the services of Jefferies, Inc. and Santangel’s Events LLC to reach potential clients. Applicant will also produce relevant, non-privileged documents under

Federal Rule of Civil Procedure 33(d) from which relevant information regarding

Applicant’s personal and professional networks may be ascertained.

(emphasis added). In short, GCL: (1) claimed an inability to construe its own words; and (2)

excluded (without explanation) the very persons that it “primarily relies on.” The deficiencies

speak for themselves.

In response to Gilead’s 30(b)(6) deposition notice, GCL objected to the terms “commerce” and “U.S. commerce,” which were defined by reference to the Lanham Act. Further, GCL inexplicably

objected that the term “date” is “vague, ambiguous, lacking in specificity, unduly burdensome,

and inscrutable.”7 Yet, the TTAB “expects each party to every case to use common sense and

reason” when responding to discovery requests.8 “The party objecting to discovery as vague or ambiguous has the burden to show such vagueness or ambiguity.”9 The Board will not honor

objections to such commonly understood terms. Thus, we urge you to reconsider your position.

7 This objection also appears in response to 30(b)(6) Topic No. 6-7, 13. 8 Cadbury UK Ltd. v. Meenaxi Enter., 115 U.S.P.Q.2d 1404 (Trademark Trial & App. Bd. July 21, 2015). See also,

Rutter Group Prac. Guide Fed. Civ. Proc. Before Trial (Nat Ed.) Ch. 11 (“respondents must exercise reason and

common sense to attribute ordinary definitions to terms and phrases utilized in interrogatories” and any denials to requests for admissions “must fairly respond to the substance of the matter”); Pulsecard, Inc. v. Discover Card

Services, Inc., 168 F.R.D. 295, 310 (D. Kan. 1996). 9 Heller v. City of Dall., 303 F.R.D. 466, 491 (N.D. Tex. 2014). See also, McCoo v. Denny's Inc., 192 F.R.D. 675,

694 (D. Kan. 2000) (respondents “should exercise reason and common sense to attribute ordinary definitions to terms

and phrases utilized in interrogatories. If necessary to clarify its answers, the responding party may include any

reasonable definition of the term or phrase at issue.”); Consumer Elecs. Ass'n v. Compras & Buys Magazine, Inc., No.

08-21085-CIV, 2008 U.S. Dist. LEXIS 80465, at *1 (S.D. Fla. Sep. 18, 2008) (“A party objecting on these grounds must explain the specific and particular way in which a request is vague.”); Cartel Asset Mgmt. v. Ocwen Fin. Corp.,


September 13, 2018

5

IV. Objections as to Relevance

GCL repeatedly raises relevance objections in its General Objections and in response to specific

requests or 30(b)(6) deposition topics.10 Under Fed. Rule Civ. P. 26(b), Gilead is entitled to

discovery regarding non-privileged matter that is relevant to any claims or defenses in the

Opposition. Gilead’s claims for likelihood of confusion and false association allege, inter alia:

1. Gilead has priority in the GILEAD name and trademark;

2. The GILEAD name is synonymous with Gilead’s identity in the marketplace; 3. There is overlap in the relevant consumers served by both Parties; and

4. GCL invests in companies that compete directly or indirectly with Gilead.

Likewise, GCL asserted an affirmative defense that there is no likelihood of confusion because:

1. Applicant was the first to use the GILEAD CAPITAL marks in commerce;11

2. Applicant and Opposer rely on dissimilar trade channels that do not overlap;12 and

3. Consumers of the Parties’ goods and services are sophisticated.13

Yet, GCL asserts relevance objections to discovery requests regarding:

1. The Selection or Adoption of the GILEAD CAPITAL Name and Trademark.14 TBMP

§ 414 states, in relevant part: “Information concerning a party’s selection and adoption of its involved mark is generally discoverable (particularly of a defendant).”15 Moreover, the intent of

the junior user in selecting and adopting the mark is routinely considered by the Board as part of

Civil Action No. 01-cv-01644-REB-CBS, 2010 U.S. Dist. LEXIS 17857, at *1 (D. Colo. Feb. 8, 2010) (“Discovery

requests must be given a reasonable construction, and a responding party is not permitted to conjure up ambiguity

where there is none.”). 10 We covered this issue at length in our March 28 deficiency notice, and will not reiterate every improper relevance

objection here. However, in response to Gilead’s second sets of discovery requests and its 30(b)(6) deposition notice, we see relevance objections in the General Objections, as well as in response to Document Request Nos. 32-33, 35,

and 43, Interrogatory Nos. 21, 26, 28-29, and 31-32, Request for Admission Nos. 32-33, and 35-36, and 30(b)(6)

Topic Nos. 1-3, 5, 7-8, 13, 15-18, 20-22, and 24. 11 Dkt. 15 at p. 5, ¶ 34. 12 Id. at ¶ 35. 13 Id. at ¶ 36. 14 See 30(b)(6) Topic Nos. 3, 5; Request for Admission Nos. 32-33, 36. 15 See also, Goodyear Tire & Rubber Co. v. Tyrco Industries, 186 USPQ 207, 208 (TTAB 1975) (whether applicant

received opinions concerning adoption of mark is not privileged and applicant must identify person, date and

documents relating thereto); Volkswagenwerk AG v. MTD Products Inc., 181 USPQ 471, 473 (TTAB 1974)

(identification of persons who suggested use of involved mark on involved goods is not improper).


September 13, 2018

6

the likelihood of confusion analysis.16 Please confirm that GCL’s responses to discovery requests

were complete, and that it will supply a witness to testify on these issues at the 30(b)(6) deposition.

2. GCL’s Use in Commerce of the GILEAD CAPITAL Marks.17 Priority is a threshold

requirement for likelihood of confusion claims, and it was disputed by GCL in its affirmative

defense.18 Gilead is entitled to discovery regarding the adoption and use of the GILEAD CAPITAL

marks.19 Therefore, GCL must provide complete responses (and competent witnesses) to address:

a. The date when GCL first rendered services under the GILEAD CAPITAL marks;

b. The manner in which GCL has rendered services under the GILEAD CAPITAL marks,

including the companies in which GCL has invested;

c. GCL’s legal authority to provide its services on or before the claimed date of first use;20

d. The persons or entities GCL has authorized to use the GILEAD CAPITAL marks; in

particular, affiliate entities; and

e. GCL’s marketing, advertising, and promotion of the services offered under the GILEAD CAPITAL marks.

The unjustifiable nature of these responses is illustrated by 30(b)(6) Topic No. 7.

Topic No. 7

The date(s) on which Applicant first provided each of Applicant’s Services in U.S. Commerce.



not only, because it seeks information about when services were provided, rather than the

16 See e.g., Estrada, 447 F. App'x at 204 (“An applicant's bad faith is potentially relevant in the likelihood-of-confusion

analysis.”); L.C. Licensing, 86 U.S.P.Q.2d at 1890 (evidence of bad faith intent to trade off a senior user’s mark “is strong evidence that confusion is likely”). 17 See e.g., Request for Admission Nos. 7-9, 17-18; Document Request Nos. 8, 10, 14-15, 20-21, 23-24, 32, 35, 43;

Interrogatory Nos. 9-10, 15, 19, 21, 30-31; 30(b)(6) Topic Nos. 7, 8, 13, 17-18, 20. 18 GCL’s Answer to the Amended Notice of Opposition states, at ¶ 34: “Applicant was the first to use the GILEAD

CAPITAL mark in commerce.” 19 Georgia-Pacific Corp. v. Great Plains Bag Co., 190 USPQ 193, 195-96 (TTAB 1976). See also, Miller & Fink

Corp. v. Servicemaster Hospital Corp., 184 USPQ 495, 496 (TTAB 1975) (must provide name, address and affiliation

of persons to whom service was first rendered); Double J of Broward Inc. v. Skalony Sportswear GmbH, 21 USPQ2d

1609, 1613 (TTAB 1991) (use or intended use of applicant’s mark in commerce with U.S. is relevant). 20 When GCL became authorized to render the services claimed is relevant to corroborating the claimed first use date.


September 13, 2018

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conditions under which Applicant’s Services were offered in U.S. commerce. Further, Opposer has not pleaded a challenge to the sufficiency of Gilead Capital’s trademark applications. If there is a statutory basis for Opposer to challenge the applications and

Opposer intends to assert it, Opposer must amend its Opposition. Applicant also objects to

the definition of “date” as unduly burdensome, inscrutable, and purporting to impose upon Applicant requirements beyond the Trademark Rules of Practice and Federal Rules of Civil

Procedure, insofar as it requires Applicant to closely approximate a day, month, and year

by means of relationship to other events, locations, or matters.

First, we should not have to explain why the date on which GCL first provided its services is

relevant to priority. Second, priority is at issue in actions under 15 U.S.C. § 1052(a) and (d), so

the “statutory basis” objection makes no sense. Further, if discovery reveals a grounds for

challenging the validity of GCL’s applications, Gilead will seek to amend its pleadings

accordingly. We will not address your contention that the word “date” is inscrutable, and expect

that you will promptly issue amended responses to avoid the embarrassment of having those words

appear in our brief.

3. The Targets for GCL’s Investments.21 The targets for GCL’s investments are relevant to

DuPont Factor #3, which considers the parties’ respective trade channels, and DuPont Factor #13,

which considers other facts or circumstances probative of the effect of use. Whether and to what

extent Gilead and GCL are investing in similar companies bears on whether consumers would

likely confuse these marks. We reiterate the offer in our May 14 correspondence to narrow the

scope of the relevant requests to seek information sufficient to identify companies that GCL has

considered as an actual or potential target for investment.

4. GCL’s Membership Organizations and Conferences.22 GCL consistently and inexplicably

seeks to avoid responding to innocuous requests regarding professional associations and

conferences. The membership organizations to which GCL belongs and the conferences it attends

are relevant to DuPont Factor #3. Additionally, this evidence bears on the extent to which relevant

persons are likely to encounter both Parties’ marks in circumstances likely to lead to confusion.23

While GCL has offered to provide documents and information regarding capital introduction

conferences it has attended, no such documents or evidence have been produced.24 GCL has

21 See Document Request No. 14-15, 21, 32; Interrogatory No. 9, 11, 16; 30(b)(6) Topic No. 18. 22 See Document Request No. 19; Interrogatory Nos. 8, 28; 30(b)(6) Topic No. 16. 23 See e.g., Fuji Photo Film Co., Inc. v. Shinohara Shoji Kabushiki Kaisha, 754 F.2d 591, 597, 225 U.S.P.Q. 540 (5th

Cir. 1985) (possible confusion stemming from distributors and visitors at a trade show is relevant to the issue of

consumer confusion); In re Novalyst IT AG, 2013 TTAB LEXIS 492, *19 (TTAB 2013) (evidence that parties attend

same trade shows or conferences is relevant to showing overlap in trade channels); Oculu, LLC v. Oculus VR, Inc.,

No. SACV 14-0196 DOC(JPRx), 2015 U.S. Dist. LEXIS 74666, at *46 (C.D. Cal. June 8, 2015). 24 See e.g., Document Request No. 19; Interrogatory No. 8; 30(b)(6) Topic No. 16.


September 13, 2018

8

provided no justification for refusing to identify other professional conferences and organizations

in which it participates. We insist on full and unqualified responses to these requests.

5. GCL’s Role or Involvement in the Companies in which It Invests.25 GCL alleges that it

takes an active role in the management and operations of a “concentrated group of companies.”26

If those companies provide goods or services that are directly or indirectly related to Gilead’s goods and services, it is relevant to the likelihood of confusion and false association claims. For

likelihood of confusion, this evidence would bear on the similarity or dissimilarity of the Parties’ goods/services (DuPont Factor #2), the market overlap of the Parties’ trade channels (DuPont

Factor #3), and the catch-all factor for other facts or circumstances probative of likelihood of

confusion (DuPont Factor #13). For false association, this bears on the issue of whether consumers

would presume a connection, affiliation, or endorsement between GCL and Gilead based on GCL’s use of the GILEAD CAPITAL marks in the context of participating in the management of portfolio

companies in the pharma sphere. We insist on full and unqualified responses to these requests.

In light of the foregoing, GCL must provide amended responses to Gilead’s first and second sets

of discovery requests; providing clear, unambiguous, and complete responses to each request.

Additionally, GCL must provide a clear indication of whether it will produce a witness to respond

to each topic outlined in the 30(b)(6) notice.

V. Evasive and Inconsistent Responses

GCL has repeatedly provided responses that are evasive, internally inconsistent, or designed to

avoid the parties’ most basic discovery obligations. Examples include:

DOCUMENT REQUEST NO. 34

Documents sufficient to identify and describe in detail the process a customer would

undertake to purchase or procure Applicant’s Services.

RESPONSE & OBJECTIONS TO DOCUMENT REQUEST NO. 34

… Applicant objects to this Document Request to the extent information is publicly available or equally available to Opposer. Applicant objects to this Document Request to

the extent it calls for the production of documents that are protected by attorney-client


…

25 See e.g., Request for Admission Nos. 27-28; Document Request Nos. 15, 25, 33; Interrogatory No. 32; 30(b)(6)

Topic No. 20. 26 See e.g., Dkt. 4 at ¶ 53.


September 13, 2018

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It should go without saying that documents cannot be both publicly available and privileged.


Admit that Applicant has invested in at least one company that offers goods or services to

the health or medical industry.


Applicant objects to this Request as compound. Pursuant to Fed. R. Civ. P. 36, each matter

must be separately stated.27

This Request addresses one issue. Either GCL invested in a company that provides health or

medical goods/services, or it did not.

Further, as with the responses to Gilead’s first set of discovery requests, GCL frequently asserts a

laundry list of objections, and then states that the Request “is incapable of a response as posed.”28

These “as posed” objections are accompanied by distortions of the plain meanings of words and other semantic evasions that strain credibility. For example, Interrogatory No. 28 states: “Identify any organizations of which Applicant is a member.” GCL responded:

Applicant objects to the definition of “Identify” as unduly burdensome and imposing upon Applicant requirements that extend beyond the Trademark Rules of Practice and the

Federal Rules of Civil Procedure. Applicant also objects to this Interrogatory as vague,

ambiguous, overbroad, unduly burdensome, and inscrutable as to the meaning and scope

of “organizations.” Applicant further objects to this Interrogatory as not relevant to the

claims or defenses and not reasonably calculated to lead to the discovery of admissible

evidence. Subject to, and without waiver of, the foregoing General and Specific Objections,


Applicant is unable to respond to this Interrogatory as posed. Applicant is willing to meet

and confer with Opposer regarding the scope of this Interrogatory.

In other words, GCL contorts a simple question as to whether the GCL is a member of any

professional associations into something “inscrutable.” Likewise, Request for Admission No. 36

asked GCL to admit that it performed a trademark clearance search prior to adopting the GILEAD

CAPITAL trademark. GCL responded:

27 See also, Request for Admission Nos. 3-4, 19, 21, 24, 25, 27, 29-31, 34, and 36-37; Interrogatory Nos. 6, 8, 13-14,

20, 27, 29, and 31. 28 See e.g., Request for Admission Nos. 1-6, 9, 11, 14, 19, 21-28, and 36-37; Interrogatory Nos. 12, 15, 19, and 28.


September 13, 2018

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Applicant objects to this Request as vague and ambiguous as to the term “analysis.” Applicant objects to this Request as compound (“and/or,” “by or for”). Pursuant to Fed. R. Civ. P. 36, each matter must be separately stated. As a result, this Request is incapable of

a response as posed. Applicant also objects to this Request to the extent it seeks information

that is protected by attorney-client privilege, work product immunity, or any other privilege

or immunity from disclosure. Applicant further objects to this Request as seeking

information that is not relevant to the claims or defenses in these proceedings.

Applicant denies Request No. 36.29

As stated above, an applicant’s knowledge and intent in selecting a mark is relevant to likelihood of confusion.30 Moreover, it is well-established that trademark searches are discoverable (exclusive

of counsel’s analysis or advice).31 Thus, the objections to this plainly worded Request are baseless.

More troubling, the denial of the request is flatly contradicted by GCL’s privilege log (served on

June 26, 2018), which lists on lines 13-16 “Providing legal advice re trademark clearance search.”

In response to the 30(b)(6) deposition notice, GCL asserted General Objection #14, which states:

Applicant objects to the definition of “Applicant,” “You,” and “Your” as vague, ambiguous, overbroad, unduly burdensome, and not reasonably calculated to lead to the

discovery of admissible evidence. Gilead Capital is the entity applying for registration of

the GILEAD CAPITAL and GILEAD CAPITAL LEADERSHIP INVESTING Marks in

Application Serial Nos. 87/048887 and 87/048941. Furthermore, Applicant cannot bind

with its testimony other persons, including any parent, predecessor, successor, assign or

affiliate. Gilead Capital will construe “Applicant,” “You,” and “Your” solely as Gilead

Capital and representatives acting on its behalf.

Whether a witness can legally bind an entity is beside the point. Facts are facts, and what a witness

remembers is what the witness remembers. Evidence is evidence regardless of whether or not you

think it is “binding.” A witness cannot avoid testifying simply because the question may touch on

an entity other than GCL. Thus, we will not accept GCL’s unilateral limitation of the terms “Applicant,” “You,” and “Your”.

Additionally, GCL objected that a number of deposition topics are “duplicative or cumulative” of Gilead’s Interrogatories. That is not a proper grounds for objection, as a primary purpose of

29 See also, Request for Admission No. 37 (denying that GCL performed a clearance search subsequent to adopting

the GILEAD CAPITAL mark. 30 See e.g., Estrada, 447 F. App'x 197; L.C. Licensing Inc., 86 U.S.P.Q.2d 1883. 31 See e.g., TBMP § 414 and the cases cited therein.


September 13, 2018

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depositions is to corroborate (or impeach) responses to discovery requests. Please confirm that

GCL will not assert this, or any other nonsensical objections, at its 30(b)(6) deposition.

Lastly, we refer to our March 28 deficiency notice and our May 14 correspondence for a discussion

of GCL’s other baseless objections. GCL must withdraw these objections and provide complete,

unqualified responses to the requests.

VI. The 30(b)(1) Deposition Notices

Regarding the 30(b)(1) deposition of Jeff Strong, GCL claims that the topics in our 30(b)(6) are

so broad, that any testimony Strong gave as a 30(b)(1) witness would be duplicative and excessive.

We will consider limiting the time of the 30(b)(1) deposition, or deferring entirely, provided, that

Mr. Strong testifies fully and cooperatively in the 30(b)(6) deposition. We decline your suggestion

to combine the two depositions, as that would lead to ambiguity and disputes over when the witness

was testifying personally and when he was testifying as a corporate representative. Please confirm.

Regarding your 30(b)(1) deposition, we understand the sensitivity arising from your role as GCL’s general counsel. However, you also serve as GCL’s Chief Operating Officer and Chief

Compliance Officer—positions that make you party to information that is relevant and not

privileged. Moreover, in-house counsel are not immune from depositions if:

1. There is no other means to obtain the information. As the Chief Compliance Officer

and Chief Operating Officer of a five-person company, there is no one else who is

qualified to testify to certain subjects regarding GCL’s policies and practices.

2. The information sought is relevant and non-privileged. Your deposition would be on

subjects related to your roles as Chief Compliance Officer and Chief Operating Officer

of GCL. Our questions concern business matters, not legal matters.

3. The information is crucial to the case. GCL made allegations regarding its use in

commerce, the manner in which it advertises its services, and the nature of the

companies in which it invests. Gilead is entitled to discover whether those issues give

rise to a greater likelihood of confusion or false association.32

Please confirm that you will make yourself available for a 30(b)(1) deposition.

32See e.g., Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986); Wright v. Life Inv'rs Ins. Co. of

Am., No. 2:08-CV-03-P-A, 2009 U.S. Dist. LEXIS 116799, at *5 (N.D. Miss. Nov. 24, 2009).


September 13, 2018

12

VII. Incomplete Responses to Discovery Requests

Our March 28 deficiency notice highlighted many of the Document Requests and Interrogatories

from Gilead’s first set of written discovery for which GCL provides an incomplete response.33 Yet

to date, GCL has not issued amended responses, and we see similar non-responses to Gilead’s

second set of discovery requests and its 30(b)(6) deposition notice, including requests regarding:

Its investment activities (i.e., the services claimed in the GILEAD CAPITAL

applications);34

GCL’s compliance with regulatory and licensing requirements for its services;35

The nature of the goods/services provided by the companies in which GCL invests;36

The companies in which GCL has invested;37

The organizations to which GCL is a member;38

The dates when GCL first provided its services in U.S. commerce;39

The manner in which GCL has provided its services in U.S. commerce;40

The role or involvement GCL has in the companies in which it invests;41 and

The method or procedure by which GCL identifies potential targets for investment.42

Please provide complete and unqualified responses to these requests.

VIII. Privilege Log

Lastly, we noticed some troubling inconsistencies with GCL’s privilege log. First, the date range is limited to the 13 months between February 8, 2016, and March 8, 2017. Please confirm that

33 See e.g., Document Request Nos. 21, 23, 25; Interrogatory Nos. 2-3, 7, 9-10, 19. 34 See Document Request No. 32. 35 See Document Request No. 35; 30(b)(6) Topic No. 13. 36 See Document Request No. 43; Interrogatory Nos. 30-31. 37 See 30(b)(6) Topic No. 17. 38 See Interrogatory No. 28. 39 See 30(b)(6) Topic No. 7. 40 See 30(b)(6) Topic No. 8. 41 See 30(b)(6) Topic No. 20. 42 See 30(b)(6) Topic No. 18.


September 13, 2018

13

GCL does not consider any documents created prior to February 8, 2016, or subsequent to March

8, 2017, to be privileged or attorney work product.

Second, many of the documents appear to pertain to communications with two non-attorneys from

another investment firm and an attorney whose status with the Texas Bar is “non-practicing.” Please clarify how these documents would fall within the attorney-client privilege.

IX. Document Production

To date, we have received 372 documents from GCL. GCL’s initial production of 138 documents

was primarily comprised of documents that were duplicative or non-responsive. The most recent

production file is better, but we still see few, if any, documents regarding the adoption of the

GILEAD CAPITAL Marks, the instances where third parties have mentioned Gilead Sciences to

GCL, or companies GCL has researched or contacted as actual or potential targets for investment.

We see similar deficiencies with many other subjects raised in our first and second sets of

document requests. Now that the Protective Order is in place, kindly let us know when we should

expect to receive the rest.

X. Conclusion

As stated above, the foregoing does not represent an exhaustive list of the deficiencies in GCL’s discovery responses, but rather consists of the more critical deficiencies that must be promptly

cured to avoid a motion to compel. Gilead reserves its rights to object to all such deficiencies and

seek appropriate relief from the Board. If we do not receive satisfactory responses to the foregoing

points, as well as those raised in our previous correspondence of March 23, 2018, and May 14,

2018, by September 25, we will move forward with a motion to compel.

Very truly yours,

/Robert M. O’Connell, Jr./





Supporting Exhibits

EXHIBIT 21

GILEAD CAPITAL Leader ship Inve s t ing

157 Columbus Avenue, Suite 403 • New York, NY 10023 • Phone: 646-693-6372

September 26, 2018

By Email ([email protected])


Of Counsel

Fish & Richardson P.C.

One Marina Park Drive

Boston, MA 02210-1878

Dear Mr. O’Connell:

I write in response to your September 13 letter, in which you purport to identify

“deficiencies” in Gilead Capital LP’s (“Applicant,” “Gilead Capital,” “we,” “us”) responses to

Gilead Sciences, Inc.’s (“Opposer,” “GSI,” “you,” “your”) various discovery requests. As you

know, we responded, both in meet-and-confers and in our email of May 23, 2018, to the

complaints articulated in Opposer’s letter of March 28. Your remaining complaints are purely

formalistic and non-substantive, given that Applicant is complying with its discovery obligations

in good faith. We repeat and amplify some of our responses below.

If any disputes remain after this response, we propose that the parties participate in a

telephone conference with a Board attorney or judge pursuant to TMBP §413.01, prior to the

filing of any motion, because we believe it would allow for the expedient resolution of the

disputes while avoiding unnecessary motion practice. At the same time, we can discuss why

Opposer has refused to verify its interrogatory responses and whether a motion to compel will be

necessary in that regard.

I. Relevant Time Period

As we stated by email dated, May 23, 2018:

“Relevant Time Period. As we discussed on our meet and confer call, Gilead

Capital will not be amending the start date of the Relevant Time Period because we

respect the corporate form and Gilead Capital did not have an archiving system in

place prior to its formation. If there are email chains that capture communications

prior to the Relevant Time Period, we will produce the whole chain. However, we

will not take extraordinary measures to try to obtain or retrieve documents before

Gilead Capital was formed. As for the end date, we explained that parties in

litigation customarily end document collection at the commencement of the action

because documents relevant to the litigation generated after the date are likely to be

privileged. Furthermore, it is burdensome and disruptive to a business to be

required to do continuous e-mail sweeps until the time of trial. It is simply not

proportional to the needs of the case, considering the limited scope of opposition

proceedings, the fact that there is no damages at stake, and the small size of our

firm. At the same time, we have said that the end date is not a hard stop date but

bears on the reasonableness of our search; we will produce some documents that



extend beyond that date to the extent they are not burdensome to produce. For

example, we will produce marketing materials used after the date the action

commenced. As you know, the duty to supplement is a duty to supplement if a

party learns that in some material respect the disclosure or response is incomplete

or incorrect and if the additional or corrective information has not otherwise been

made known to the other party during discovery. It is does not mean that parties

get open-ended discovery until the date of trial. If you have contrary authority,

please provide it and we may reconsider.”

Accordingly, Applicant is providing discovery of information outside of the Relevant

Time Period to the extent it is (i) relevant; (ii) not burdensome; and (iii) where supplementation

is necessary to ensure that a prior disclosure or response is not materially incomplete or

incorrect. However, we are not continually collecting and reviewing emails or taking

extraordinary measures to get documents outside of our possession, custody, or control.

Applicant’s reasonable, good faith compliance is clear from the fact that—among other things—

it has produced emails from 2015 where they were captured in email chains in 2016 and

preserved in Applicant’s archived emails; produced documents regarding Applicant’s

participation in a capital introduction conference that occurred in April 2017; and responded to

Opposer’s Interrogatory No. 6, which asked for the identity “of all third parties who have

mentioned to Applicant any similarity between Opposer’s name or Mark and Applicant’s name

or Mark at any time from January 1, 2014, to the present” -- even though the information (and

documents, where they exist) post-date March 8, 2017.

Furthermore, although Applicant will not provide 30(b)(6) testimony for any time period

prior to its legal existence (because it lacks legal capacity to do so), Applicant has not precluded

Opposer from taking 30(b)(1) testimony regarding relevant events that pre-date the Relevant

Time Period, from witnesses testifying about their personal knowledge (See 6/26/18 R&O to

Opposer’s 30(b)(6) Deposition Notice). Thus, Applicant is not preventing Opposer from asking

witnesses questions about Applicant’s specimen, including any errors. (See id. R&O to Topic

No. 26 (subject to objections, Applicant will produce a witness to testify about the specimens

used to support the applications).

Opposer’s strained arguments about priority are a red herring: Applicant was formed on

January 12, 2016 and has claimed a date of first use of January 15, 2016. Applicant has not

claimed that it has trademark rights in the GILEAD CAPITAL and GILEAD CAPITAL

LEADERSHIP INVESTING marks prior to its legal existence. Moreover, Opposer has argued

that its use of the GILEAD mark precedes Applicant’s use of its marks by many years, such that

it is not credible to assert that discovery regarding events in 2014 and 2015 are material to its

case.

The case law cited in Opposer’s letter does not require any more.1 Indeed, despite its

allegations of 30 years of trademark use, Opposer declines to produce documents outside of a

1 Your citation to cases involving bad faith intent misses the mark. As you know, Mr. Strong’s family has been

farming in Gilead, Nebraska, for more than a century—well before Opposer was even formed—and the



seven year time period unless the materials are “(a) relevant; and (b) not unduly burdensome to

produce.” (See 8/31/18 R. O’Connell email).

II. Applicant’s Objections

A. General Objections

We disagree with your characterization of Applicant’s objections to Opposer’s discovery

requests and deposition notices as “boilerplate.” Although Applicant interposed general

objections in its responses—which are not prohibited by the Federal Rules—Applicant has also

interposed specific objections in each response, with due consideration as to which objections

might apply to documents responsive to Opposer’s requests.

You complain that the objections are supposedly “evasive, internally inconsistent, or

designed to avoid [our] discovery obligations,” citing Document Request No. 34, which seeks

“documents sufficient to identify and describe in detail the process a customer would undertake

to purchase or procure Applicant’s Services.” (9/13 Letter, p. 8). However, Applicant’s response

and objections to that document request actually underscore the fact that Applicant had

substantial justification for each its objections. For example, because the document request

asked for documents “sufficient to identify…,” Applicant did not interpose an objection that the

document request was overbroad or unduly burdensome. Further, there is nothing inconsistent

about lodging an objection “to the extent information is publicly available” and a separate

objection to the extent a document request calls for privileged documents. Opposer’s Document

Request No. 34 could be read to request documents that are publicly available (e.g., a document

filed with the SEC), as well as attorney drafts of that document, which would be privileged.

Applicant has produced relevant, non-privileged documents responsive to this request and

withheld (and logged) privileged documents. It is unclear why you would interpret each of

Applicant’s objections as applying to the same documents (see 9/13 Letter, p. 8 – stating that

“documents cannot be both publicly available and privileged”) (emphasis in original).

Applicant’s use of familiar phrases in its objections does not mean they are “boilerplate.”

B. Objections to Definitions

Applicant objected to Opposer’s definitions because they were not clear. Opposer

recognized this and addressed some of the deficiencies by changing its terminology in its second

set of discovery requests. Indeed, because the second set of requests were clearer than the first

set, Applicant provided more responses.

In other instances, we have expressed a willingness to meet and confer so that Opposer

can explain the meaning and scope of some of its requests. Rather than engage in such a

conversation, however, Opposer continues to insist that its requests are plainly worded. They are

not. For instance, you take issue with Applicant’s objection to your use of the term

“organizations” in Interrogatory No. 28, even though there are different types of legal

location of the family farm was the inspiration for Applicant’s marks. It is not plausible that the date Applicant

selected the mark can somehow establish its bad faith in selection of the marks.



organizations, such as corporations, of which Applicant could be a member (e.g., a managing

member), as well as associations consisting of separate legal entities that coordinate for a

common purpose, such as professional associations. You did not ask Applicant to identify

whether it is a member of any professional associations. (9/13/18 Letter, p. 9). If you had, we

would have responded that Applicant is not a member of any professional associations. Opposer

is free to clarify its terminology further and Applicant will meet and confer with you, but we

decline to withdraw or amend our objections.

To address your other specific complaints:

• Interrogatory No. 7. Frankly, we do not understand what you are complaining about

or what you would be asking the Board to compel. Applicant responded to the

interrogatory by identifying the two firms whose services it has used to reach

potential clients. Although we do not “use” our friends and acquaintances, we did

produce documents from which Opposer can ascertain some of the people in

Applicant’s personal and professional networks.

• “Date” -- Opposer did not use the plain meaning of the word “date” – which is

commonly understood as the day, month, and year -- but instead defined it to include

“the closest approximation that can be made by means of relationship to other events,

locations, or matters.” (Opposer’s Second Set of Document Requests, which was

incorporated by reference into its Interrogatories and 30(b)(6) Deposition Notice).

That was the basis of the objections to Topics 6, 7, and 13 of Opposer’s 30(b)(6)

Deposition Notice, which clearly stated that “Applicant objects to the definition of

‘Date’ as vague, ambiguous, lacking in specific, unduly burdensome, and inscrutable,

and purporting to impose upon Applicant requirements beyond the Trademark Rules

of Practice and Federal Rules of Civil Procedure, insofar as it requires Applicant to

closely approximate a day, month, and year by means of relationship to other

events, locations, or matters.” If you believe your definition is clear, please explain

what is means to approximate a day by means of relationship to a location. It is

completely misleading and a sign of bad faith for Opposer to omit the remainder of

the objection and then accuse Applicant of making unfounded objections. (9/13/18

Letter, p. 4).

• “Commerce” – Applicant’s objection reflects its position that the geographic scope of

the case is limited to the United States. Congress does not have authority to regulate

commerce that occurs in another country. More to the point, Applicant did not base

its trademark application on use in commerce in a foreign country.

C. Objections to Relevance

1. Selection and Adoption of the Mark. We have considered your comments

regarding the discoverability of a party’s selection and adoption of the involved mark, and have

revisited our objection. By this letter, we are withdrawing our relevance objection to

discovery requests regarding the selection and adoption of Applicant’s Marks. It is

important to note, however, that Applicant has already provided, and will provide, discovery on



these topics. In response to Interrogatory Nos. 2 and 3, Applicant identified Mr. Strong as the

person who selected the marks based on his family’s farming roots in Gilead, Nebraska.

Applicant also stated it would produce a 30(b)(6) witness to testify regarding Topic No. 3 (the

selection and adoption of the GILEAD CAPITAL name and trademark, for the time period

beginning on January 12, 2016 on), and Opposer may ask Mr. Strong about the topic for the time

period pre-dating January 12, 2016. Further, Applicant has not withheld documents on the basis

of this objection.

2. Organizations and Conferences. As discussed above, had Opposer just asked

whether Applicant was a member of any professional associations, we would have responded

that we are not. See supra II.B. With respect to conferences, only capital introduction

conferences are relevant to DuPont factor #3 (trade channels), and we have produced documents

regarding such conferences. Applicant’s last production contained documents relating to the

Jefferies and Santangel’s conferences that Applicant attended.

3. Applicant’s Investments and Involvement in its Investments. Applicant disagrees

with Opposer’s position that its investments are relevant to DuPont factors #2, #3 or #13. First,

the relevant comparison is between the parties’ goods and services as stated in their respective

registrations or applications—not between the goods and services of companies in which one

party invests versus the good and services of the other party. Furthermore, Opposer does not

provide investment services. Applicant’s investments are highly proprietary and generally not

known by the public. There is no apparent overlap in the parties’ trade channels, such that the

purchasers of Opposer’s goods would even be exposed to Applicants’ marks in connection with a

particular investment.2

Opposer describes its trade channels as follows:

Opposer’s “products are marketed through [its] commercial teams and/or in

conjunction with third-party distributors and corporate partners. [Opposer’s]

commercial teams promote our products through direct field contact with

physicians, hospitals, clinics and other healthcare providers. [Opposer] generally

grant[s] [its] third-party distributors the exclusive right to promote [its] product in

a territory for a specified period of time.. . . .

[Opposer] sell[s] and distribute[s] most of [its] products in the United States

exclusively through the wholesale channel. [Opposer’s] product sales to three large

wholesalers, McKesson Corporation, AmerisourceBergen Corporation and

Cardinal Health, Inc. each accounted for more than 10% of total revenues for each

of the years ended December 31, 2017, 2016 and 2015. On a combined basis, in

2017, these wholesalers accounted for approximately 89% of [Opposer’s] product

sales in the United States and approximately 62% of [its] total worldwide revenues.

. . .

Gilead Sciences, Inc. 2017 Form 10-K Annual Report at 7-8.

In contrast, Applicant has informed you that:

2 Contrary to your assertion, Applicant did not allege that it takes an active role in the management and operations of companies.



the trade channels to reach [“accredited investors,” “qualified clients,” and/or

“qualified purchasers”] include internal staff of the investment manager engaging

with potential investors (as a result of prior contacts of investment manager

personnel or referrals from other investors, private banks, or professional

references), fund partners marketing the fund, broker-dealers being engaged as

marketers, capital introduction teams at prime brokers, placement agents, and

consultants.

Applicant’s Response to Interrogatory No. 17.

Opposer fails to articulate how purchasers of its products—i.e., third party distributors and

wholesalers of drugs—(or anyone) would be exposed to Applicant’s marks in connection with a

particular investment. When Applicant invests in a company, that company does not use or display

Applicant’s marks. It would be rather strange for any public company to do so.

4. Use in Commerce

We do not dispute that use in commerce is relevant and have provided discovery and will

provide a witness on such issues as the manner in which Applicant renders its services and

markets it services under its marks, as we stated in our responses to Opposer’s 30(b)(6)

deposition notice. However, we do not intend to amend our responses to requests for specific

dates when Applicant rendered services or its legal authority to do business—which you claim

are required to establish priority—because (i) the discovery requests were, in many instances,

poorly drafted, ambiguous, not clearly relevant, and sometimes just factually wrong; (ii) you

already have the information you need to establish priority, and (iii) we object to Opposer’s

attempt to go on a fishing expedition into its relationship with its regulators. For example, you

asked about the dates on which Applicant obtained “licenses,” even though investment advisers

do not get licenses. You wanted Applicant to admit that it was registered with FINRA no earlier

than January 27, 2016, even though Applicant is not a broker-dealer and is not registered with

FINRA (See RFA No. 17). You seem fixated on the date that Applicant became registered with

the SEC, even though that information is public and does not signify legal authority to do

business, in any event. Not all investment advisers are required to register with the SEC (e.g.,

exempt reporting advisers), and in fact, some are not eligible to register with the SEC unless they

meet certain assets under management requirements.

Opposer’s assertions that it needs discovery about the date of Applicant’s first use in

commerce in order to establish priority is a pretext for a fishing expedition. Opposer relies on

three GILEAD trademarks that were registered in 1989 and 2004. Presumably, Opposer will use

its registrations in its Notice of Reliance to establish its first use in commerce. Applicant was

formed on January 12, 2016 and claims first use of the GILEAD CAPITAL and GILEAD

CAPITAL LEADERSHIP INVESTING Marks on January 15, 2016. Unless Opposer is relying

on a date after January 15, 2016, to establish its priority, Applicant’s rendering of services or

registrations after that date is not material to the likelihood of confusion analysis. Moreover, the

information is publicly available and known to you, as evidenced by the fact that you have



moved to amend the Notice of Opposition to include the information. It would be absurd for

Opposer to move to compel information it already has.

D. Requests for Admission

We previously discussed Applicant’s position regarding Opposer’s defective Requests for

Admission (“RFA”) during our meet-and-confer call on March 30, 2018. I repeat those points

here.

While Applicant interposed several objections to the RFAs, one of the critical defects was

the fact that most of them were compound. Unlike responses to document requests, admissions

have evidentiary weight. Thus, Fed. R. Civ. P. 36(a)(2) requires that “each matter must be

separately stated.” Compound questions are objectionable because they elicit responses that are

ambiguous. See Atunnise v. Mukasey, 523 F.3d 830, 835 (7th Cir. 2008) (“There is a reason why

courts disfavor compound questions posed to witnesses during trial; they are likely to elicit an

ambiguous response.”); see also Lore v. City of Syracuse, 670 F.3d 127, 160 (2d Cir. 2012)

(compound questions normally cause answers to be ambiguous); Paramount Farms Int’l LLC v.

Ventilex B.V., 500 Fed. Appx. 586 (9th Cir. 2012) (district court acted within its discretion in

excluding deposition testimony elicited from compound question that was ambiguous and

confusing). That is why attorneys may make objections to form during the questioning of

witnesses, so that the questioner can rephrase the question. Yet, even though we explained this

defect to you in March, two months later, GSI propounded additional RFAs—including RFA

Nos. 34 and 36—which had the same problem.

Request for Admission No. 34 does not address “one issue,” as you claim. (9/13/18

Letter, p. 9). Instead, it asks Applicant to admit at least four separate matters--namely:

(i) Applicant has invested in at least one company that offers goods to the health

industry.

(ii) Applicant has invested in at least one company that offers services to the health

industry.

(iii) Applicant has invested in at least one company that offers goods to the medical

industry.

(iv) Applicant has invested in at least one company that offers services to the medical

industry.

A simple “admit” response would be ambiguous as to which statement was being

admitted and should not be entitled to any evidentiary weight. See Perez v. Z Frank Oldsmobile,

Inc., 223 F.3d 617 (7th Cir. 2000) (verdict for punitive damages was ambiguous where jury was

asked “a compound question, making a simple ‘yes’ ambiguous”). For example, suppose, for the

sake of argument only—that Applicant had invested in a company that offered administrative

services (but not products) to the medical industry and responded to the RFA with a simple

“admit.” Opposer should not then be able to use that response to argue that Applicant admitted

to investing in a company that provided goods to the health industry, if that statement is false.

Similarly—and contrary to your characterization—Request for Admission No. 36 does

not ask Applicant to “admit that it performed a clearance search prior to adopting the GILEAD



CAPITAL trademark” (9/13/18 Letter, p. 9). Instead, Opposer asked Applicant to “[a]dmit that a

trademark clearance search and/or analysis was performed by or for Applicant on the GILEAD

CAPITAL trademark prior to Applicant’s adoption of such a mark.” That RFA contains at least

six separate matters—to wit:

(i) A trademark clearance search was performed by Applicant on the GILEAD

CAPITAL trademark prior to Applicant’s adoption of such a mark.

(ii) A trademark clearance search was performed for Applicant on the GILEAD

CAPITAL trademark prior to Applicant’s adoption of such a mark.

(iii) A trademark analysis was performed by Applicant on the GILEAD CAPITAL

trademark prior to Applicant’s adoption of such a mark.

(iv) A trademark analysis was performed for Applicant on the GILEAD CAPITAL

trademark prior to Applicant’s adoption of such a mark.

(v) A trademark clearance search and analysis were performed by Applicant on the

GILEAD CAPITAL trademark prior to Applicant’s adoption of such a mark.

(vi) A trademark clearance search and analysis were performed for Applicant on the

GILEAD CAPITAL trademark prior to Applicant’s adoption of such a mark.

Thus, Applicant is not being “evasive.” These RFAs are incapable of a response as

posed, which is why they were denied.3

III. Deposition Notices

A. Rule 30(b)(6) Deposition

With respect to Applicant’s objections to Opposer’s 30(b)(6) Notice of Deposition,

Opposer’s assertion that “whether a witness can legally bind an entity is beside the point” is

bizarre. (9/13/18 Letter, p. 10). Binding the entity is the point of a Rule 30(b)(6) deposition, as

compared to a Rule 30(b)(1) deposition. The Rule 30(b)(6) designated witness “represents the

knowledge of the corporation, not of the individual deponents,” U.S. v. Taylor, 166 F.R.D. 356,

361 (M.D.N.C. 1996); “is speaking for the corporation,” id.; and provides “binding answers on

behalf of the corporation.” Starlight Int’l, Inc. v. Herlihy, 186 F.R.D. 626, 638 (D. Kan. 1999).

As we stated, we will construe “Applicant,” “You,” and “Your” solely as Gilead Capital and

representatives acting on its behalf.

Applicant continues to maintain that it would be excessive for Mr. Strong to be deposed

for two days given the limited scope of these proceedings. Furthermore, it is unreasonable for

Opposer to condition a 30(b)(1) deposition on its subjective assessment of whether Mr. Strong

testifies “fully and cooperatively in the 30(b)(6) deposition.” Nonetheless, in order to address

your stated concern that a combined deposition could lead to ambiguity as to when Mr. Strong is

testifying as a corporate representative versus in his personal capacity, we offer the following

compromise. We propose that Opposer conduct the depositions sequentially in one 7-hour day,

with the first portion dedicated to the 30(b)(6) topics for the time period starting January 12,

2017 onward, and the second portion dedicated to Mr. Strong’s 30(b)(1) testimony for events

3 The documents encompassed on lines 13-16 of Applicant’s privilege log contain legal advice regarding a trademark clearance search.



pre-dating January 12, 2017. Opposer can choose how it divides its time. Please let me know

whether this proposal is acceptable to you.

Finally, we confirm that Applicant does not intend to withhold 30(b)(6) deposition

testimony on the basis that the topic is duplicative or cumulative of its responses to the

interrogatories. We do, however, believe that some of the proposed questioning is unnecessary

because--unlike Opposer, Applicant provided sworn verifications for its interrogatory

responses—making it unnecessary to corroborate the statements. We have reminded you at least

three times for Opposer’s verifications of its interrogatory responses. Please provide them

forthwith.

B. Rule 30(b)(1) Deposition

With respect to Opposer’s deposition notice to me, Gilead Capital repeats and reasserts

its objections:

Applicant Gilead Capital (“Applicant” or “Gilead Capital”) hereby objects to

Opposer Gilead Sciences, Inc.’s (“Opposer” or “GSI”) Notice of Deposition of

Kanchana Wangkeo Leung. As Opposer is well aware, Ms. Leung is counsel to

Gilead Capital. Any personal knowledge that she has, which may be relevant to

the claims or defenses, is protected from disclosure by the attorney-client privilege

and/or work product immunity. As stated in Applicant’s Responses and Objections

to Opposer’s First Set of Interrogatories, Ms. Leung provided legal advice

regarding Applicant’s Marks (Interrogatory No. 2) and was involved in the

preparation of Applicant’s discovery requests and responses (Interrogatory No. 18),

which was done in her capacity as counsel. Although Applicant identified Ms.

Leung as the person most knowledgeable about the analysis undertaken of Gilead

Capital’s Marks, Applicant objected to Interrogatory No. 5 as seeking information

that is protected by the attorney-client privilege, work product immunity, and any

other privilege or immunity against disclosure. As reflected in Applicant’s

privilege log, documents relating to any analysis or clearance searches done in

connection with Applicant’s Marks are privileged.

To the extent Ms. Leung is in possession of any relevant, non-privileged

information, Opposer may obtain such discovery through Applicant’s 30(b)(6)

witness. Indeed, Topic 5 of Opposer’s Notice of Rule 30(b)(6) Deposition of

Applicant seeks testimony regarding “[a]ny clearance analyses or other evaluations

that were performed prior to adopting the GILEAD CAPITAL name and

trademark.” Applicant will produce a 30(b)(6) witness to testify regarding any non-

privileged information that falls within Topic 5. Gilead Capital rejects Opposer’s

transparent attempt to intrude upon the attorney-client relationship or otherwise to

disqualify Ms. Leung from representing Applicant by acting as a witness.

(Applicant’s Objections to Opposer’s Notice of Deposition of Kanchana Wangkeo

Leung) (emphasis added).



In response, you assert that, as Applicant’s COO and CCO, I have relevant, non-privileged

information that cannot be obtained by other means.

Your position is factually and legally baseless. As an initial matter, the premise that the

CCO/COO is the only person who has knowledge about a company’s policies and practices is

facially absurd; it presumes that an organization does not actually implement its policies and

procedures but instead lets them reside solely in the mind of the CCO/COO. More importantly,

you have failed to identify any relevant, non-privileged information that cannot be obtained

through a 30(b)(6) witness. In fact, you have noticed such topics as the “the way in which

Applicant has advertised, marketed, or promoted Applicant’s Services,” and Applicant has

agreed to produce a witness. (See Gilead Sciences, Inc.’s Notice of Rule 30(b)(6) Deposition to

Applicant, Topic No. 10). Under Fed. R. Civ. P. 30(b)(6), a corporate witness is not required to

have personal knowledge about a designated subject matter but can be educated about such

topics. (See Fed. R. Civ. P. 30(b)(6) (“The persons designated must testify about information

known or reasonably available to the organization.”) (emphasis added). We stand by our

objections and reject your transparent attempt to gain tactical advantage by harassing counsel.

IV. Privilege Log

Applicant’s privilege log covers the Relevant Time Period. We logged privileged,

responsive documents where they existed. Further, Applicant’s production of certain documents

outside of the Relevant Time Period (see supra Part I) makes clear that we are not taking the

position that all documents outside of that period are privileged.

In addition, Applicant’s privilege log clearly states when a document reflects legal advice

(as compared to providing or requesting legal advice). Blue River Partners LLC provides certain

compliance-related services to Applicant, and under certain circumstances, Applicant must

discuss counsel’s advice with Blue River employees so that they can implement it (e.g., legal

advice about a filing). Such communications do not lose their privileged character. E.g., In re

Bieter Co., 16 F.3d 929, 937 (8th Cir. 1994).

V. Document Production

As indicated in its responses and objections to Opposer’s document requests, where

Applicant agreed to produce, Applicant stated that it would produce relevant, non-privileged,

responsive documents “if any.” That is what we have done. Thus, the small number of

documents is not a “deficiency.” We cannot manufacture documents where they do not exist.

Best regards,

/Kanchana Wangkeo Leung/





Supporting Exhibits

EXHIBIT 22




Supporting Exhibits

EXHIBIT 23




Supporting Exhibits

EXHIBIT 24




Supporting Exhibits

EXHIBIT 25

GCL ‐ Gilead Capital Do u e t Colle tioPrivilege Log

Date Se t To Fro CC: AuthorE ail Su je t/ Do u e t Des riptio Privilege Basis PrivBegi Bates PrivE d Bates I ter al BegDo

/ /Jeff e St o g; Justi Ka e; A atol B kho sk Ka ha a W. Leu g, Es . Ka ha a W. Leu g, Es .

A/C p i ileged ‐ T ade a k ‐ Gilead S ie es A/C & o k p odu t

P o idi g legal ad i e e t ade a k dispute ith GSI PRIVLOG PRIVLOG GCL _

/ / Atta h e t A/C & o k p odu t Atta h e t to PRIVLOG PRIVLOG PRIVLOG GCL _

/ /Jeff e St o g; Justi Ka e; A atol B kho sk Ka ha a W. Leu g, Es .

RE: A/C p i ileged ‐ T ade a k ‐ Gilead S ie es A/C & o k p odu t


/ /Jeff e St o g; Justi Ka e; A atol B kho sk Ka ha a W. Leu g, Es . Ka ha a W. Leu g, Es . t ade a k ‐ e te sio A/C & o k p odu t


/ / Atta h e t A/C & o k p odu t Atta h e t to PRIVLOG PRIVLOG PRIVLOG GCL _/ / Atta h e t A/C & o k p odu t Atta h e t to PRIVLOG PRIVLOG PRIVLOG GCL _/ / Atta h e t A/C & o k p odu t Atta h e t to PRIVLOG PRIVLOG PRIVLOG GCL _/ / Atta h e t A/C & o k p odu t Atta h e t to PRIVLOG PRIVLOG PRIVLOG GCL _

/ / Ka ha a W. Leu g, Es . Jeff e St o gJusti Ka e; A atol B kho sk Jeff e St o g Re: t ade a k ‐ e te sio A/C & o k p odu t

Refle ti g legal ad i e e t ade a k dispute ith GSI PRIVLOG PRIVLOG GCL _

/ /Jeff e St o g; Justi Ka e; A atol B kho sk Ka ha a W. Leu g, Es . Ka ha a W. Leu g, Es . PPM Dis ussio Poi ts ‐ I te al A/C

P o idi g legal ad i e e fu d dis losu e do u e ts PRIVLOG PRIVLOG GCL _

/ / Atta h e t Ka ha a W. Leu g, Es . A/C P o idi g legal ad i e e fu d dis losu e do u e ts PRIVLOG PRIVLOG GCL _

/ / Jeff e St o g; Justi Ka e Ka ha a W. Leu g, Es . Ka ha a W. Leu g, Es . Gilead Capital T ade a k Sea h.do A/C & o k p odu tP o idi g legal ad i e e t ade a k lea a e sea h PRIVLOG PRIVLOG GCL _


/ /Ka ha a W. Leu g, Es .; Justi Ka e; Jeff e St o g Ka ha a W. Leu g, Es . Ka ha a W. Leu g, Es .

RE: Gilead Capital T ade a k Sea h.do A/C & o k p odu t

P o idi g legal ad i e e t ade a k lea a e sea h PRIVLOG PRIVLOG GCL _


/ /Ka ha a W. Leu g, Es .; Justi Ka e; Jeff e St o g Ka ha a W. Leu g, Es . Ka ha a W. Leu g, Es .


P o idi g legal ad i e e t ade a k lea a e sea h PRIVLOG PRIVLOG GCL _

/ / Jeff e St o g K le Hoga , Es . Kelli Moll, Es .; Justi Ka e K le Hoga , Es .RE: Jeffe ies CI Co fe e e P eli i a I fo atio A/C

P o idi g legal ad i e e a keti g ate ials PRIVLOG PRIVLOG GCL _

/ / Atta h e t A/C Atta h e t to PRIVLOG PRIVLOG PRIVLOG GCL _

/ /Kelli Moll, Es .; Ma issa Bello , Es .; Jeff e St o g Ka ha a W. Leu g, Es . Li ie Walke , Es . Ka ha a W. Leu g, Es . RE: PPM ‐ Gilead O sho e Fu d LP A/C

Seeki g legal ad i e e fu d dis losu e do u e ts PRIVLOG PRIVLOG GCL _

/ /Kelli Moll, Es .; Ma issa Bello , Es .; Jeff e St o g Ka ha a W. Leu g, Es . Li ie Walke , Es . Ka ha a W. Leu g, Es . RE: PPM ‐ Gilead O sho e Fu d LP A/C



/ / Ma issa Bello , Es . Ka ha a W. Leu g, Es .Jeff e St o g; Kelli Moll, Es . Ka ha a W. Leu g, Es . Re: PPM ‐ Gilead O sho e Fu d LP A/C


/ /

Ka ha a W. Leu g, Es .; Ma issa Bello , Es .; Jeff e St o g Kelli Moll, Es . Justi Ka e Kelli Moll, Es . RE: PPM ‐ Gilead O sho e Fu d LP A/C

Refle ti g legal ad i e e fu d dis losu e do u e ts PRIVLOG PRIVLOG GCL _

/ /Ka ha a W. Leu g, Es .; Jeff e St o g; Justi Ka e Ma issa Bello , Es .

Kelli Moll, Es .; Li ie Walke , Es . Ma issa Bello , Es . RE: PPM ‐ Gilead O sho e Fu d LP A/C


/ / Atta h e t A/C Atta h e t to PRIVLOG PRIVLOG PRIVLOG GCL _/ / Atta h e t A/C Atta h e t to PRIVLOG PRIVLOG PRIVLOG GCL _

/ /Ma issa Bello , Es .; Jeff e St o g; Justi Ka e Ka ha a W. Leu g, Es .

Kelli Moll, Es .; Li ie Walke , Es . Ka ha a W. Leu g, Es . RE: PPM ‐ Gilead O sho e Fu d LP A/C



/ /Ma issa Bello , Es .; Jeff e St o g; Justi Ka e Ka ha a W. Leu g, Es .



/ /Ka ha a W. Leu g, Es .; Jeff e St o g Ma issa Bello , Es .

Kelli Moll, Es .; Li ie Walke , Es . Ma issa Bello , Es . PPM ‐ Gilead O sho e Fu d LP A/C





/ /Ma issa Bello , Es .; Jeff e St o g Ka ha a W. Leu g, Es .



/ / Ka ha a W. Leu g, Es . R a Dalto , Es . Jeff e St o g R a Dalto , Es . RE: PPM ‐ Gilead O sho e Fu d LP A/CRefle ti g legal ad i e e fu d dis losu e do u e ts PRIVLOG PRIVLOG GCL _

/ / Ka ha a W. Leu g, Es . R a Dalto , Es . Jeff e St o g R a Dalto , Es . RE: PPM ‐ Gilead O sho e Fu d LP A/CRefle ti g legal ad i e e fu d dis losu e do u e ts PRIVLOG PRIVLOG GCL _

/ / R a Dalto , Es . Ka ha a W. Leu g, Es . Jeff e St o g; Gilead Ops Ka ha a W. Leu g, Es . Re: PPM ‐ Gilead O sho e Fu d LP A/CRefle ti g legal ad i e e fu d dis losu e do u e ts PRIVLOG PRIVLOG GCL _


/ /Luke St ause ; R a Dalto , Es . Ka ha a W. Leu g, Es . Gilead Ops; Jeff e St o g RE: PPM ‐ Gilead O sho e Fu d LP A/C


/ /R a Dalto , Es .; Luke St ause Ka ha a W. Leu g, Es . Gilead Ops; Jeff e St o g RE: PPM ‐ Gilead O sho e Fu d LP A/C


/ /Ka ha a W. Leu g, Es .; Justi Ka e Jeff e St o g Jeff e St o g


Seeki g legal ad i e e t ade a k lea a e sea h PRIVLOG PRIVLOG GCL _

/ /Ka ha a W. Leu g, Es .; Justi Ka e Jeff e St o g Jeff e St o g


Seeki g legal ad i e e t ade a k lea a e sea h PRIVLOG PRIVLOG GCL _

/ / K le Hoga , Es . Jeff e St o g Kelli Moll, Es .; Justi Ka e Jeff e St o gRE: Jeffe ies CI Co fe e e P eli i a I fo atio A/C

Seeki g legal ad i e e a keti g ate ials PRIVLOG PRIVLOG GCL _

/ / K le Hoga , Es . Jeff e St o g Kelli Moll, Es .; Justi Ka e Jeff e St o gRE: Jeffe ies CI Co fe e e P eli i a I fo atio A/C

Seeki g legal ad i e e a keti g ate ials PRIVLOG PRIVLOG GCL _

/ / R a Dalto , Es . Jeff e St o g Justi Ka e; Gilead Ops Jeff e St o g Ma keti g Mate ial A/CRefle ti g legal ad i e e a keti g ate ials PRIVLOG PRIVLOG GCL _


/ / Atta h e tCap I t o A k o ledge Fu d Ma age _No Custo e A/C Atta h e t to PRIVLOG PRIVLOG PRIVLOG GCL _

/ / Justi Ka e Ka ha a W. Leu g, Es . Ka ha a W. Leu g, Es . Re: pp A/CRefle ti g legal ad i e e fu d dis losu e do u e ts PRIVLOG PRIVLOG GCL _

/ / Justi Ka e Ka ha a W. Leu g, Es . Ka ha a W. Leu g, Es . FW: PPM ‐ Gilead O sho e Fu d LP A/CRefle ti g legal ad i e e fu d dis losu e do u e ts PRIVLOG PRIVLOG GCL _


/ / Ka ha a W. Leu g, Es . Ka ha a W. Leu g, Es . Ka ha a W. Leu g, Es .PPM ‐ Gilead Co e ts ‐ ‐

A/CRefle ti g legal ad i e e fu d dis losu e do u e ts PRIVLOG PRIVLOG GCL _


/ / Ka ha a W. Leu g, Es . Ka l Huth, Es . Ka l Huth, Es . Re: T ade a k A/C & o k p odu tP o idi g legal ad i e e t ade a k dispute ith GSI PRIVLOG PRIVLOG GCL _


/ / Ka ha a W. Leu g, Es . Ka l Huth, Es . Ka l Huth, Es . Re: T ade a k A/C & o k p odu tRefle ti g legal ad i e e t ade a k dispute ith GSI PRIVLOG PRIVLOG GCL _

/ / Ka ha a W. Leu g, Es . Ka ha a W. Leu g, Es . Ka ha a W. Leu g, Es . FW: PPM ‐ Gilead O sho e Fu d LP A/CRefle ti g legal ad i e e fu d dis losu e do u e ts PRIVLOG PRIVLOG GCL _

/ / Atta h e t A/C Atta h e t to PRIVLOG PRIVLOG PRIVLOG GCL _/ / Atta h e t A/C Atta h e t to PRIVLOG PRIVLOG PRIVLOG GCL _

/ / Ka ha a W. Leu g, Es . R a Dalto , Es . Ch is Hai le ; Luke St ause R a Dalto , Es . Gilead Capital ‐ PPM A/CRefle ti g legal ad i e e fu d dis losu e do u e ts PRIVLOG PRIVLOG GCL _

/ / Atta h e t A/C Atta h e t to PRIVLOG PRIVLOG PRIVLOG GCL _/ / Atta h e t A/C Atta h e t to PRIVLOG PRIVLOG PRIVLOG GCL _/ / Atta h e t A/C Atta h e t to PRIVLOG PRIVLOG PRIVLOG GCL _/ / Atta h e t A/C Atta h e t to PRIVLOG PRIVLOG PRIVLOG GCL _/ / Atta h e t A/C Atta h e t to PRIVLOG PRIVLOG PRIVLOG GCL _/ / Atta h e t A/C Atta h e t to PRIVLOG PRIVLOG PRIVLOG GCL _/ / Atta h e t A/C Atta h e t to PRIVLOG PRIVLOG PRIVLOG GCL _

/ / R a Dalto , Es . Ka ha a W. Leu g, Es . Ka ha a W. Leu g, Es . RE: a keti g ate ials A/CRefle ti g legal ad i e e a keti g ate ials PRIVLOG PRIVLOG GCL _

/ / Atta h e t A/C Atta h e t to PRIVLOG PRIVLOG PRIVLOG GCL _/ / Atta h e t A/C Atta h e t to PRIVLOG PRIVLOG PRIVLOG GCL _/ / Atta h e t A/C Atta h e t to PRIVLOG PRIVLOG PRIVLOG GCL _/ / Atta h e t A/C Atta h e t to PRIVLOG PRIVLOG PRIVLOG GCL _/ / Atta h e t A/C Atta h e t to PRIVLOG PRIVLOG PRIVLOG GCL _/ / Atta h e t A/C Atta h e t to PRIVLOG PRIVLOG PRIVLOG GCL _



/ / D aft Fo ADV, Pa t A A/CRefle ti g Aki legal ad i e e dis losu e to i esto s PRIVLOG PRIVLOG GCL _




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