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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA Fort Lauderdale Division CASE NO. 1:13-CV-61678-COHN-SELTZER ) ) ) ) ) ) ) ) ) Plaintiffs, ) ) v. ) SONY PICTURES TELEVISION INC., a ) ) foreign corporation, ) ) Defendant. ) ) SONY PICTURES TELEVISION INC., a ) ) foreign corporation, ) ) Counter-Claimant, ) ) v. ) ) The CELLER LAW ORGANIZATION, ) INC., a Florida corporation, d/b/a/ THE ) CELLER ORGANIZATION, CELLER ) LAW, P.A., a Florida Professional ) Association, CELLER ENTERTAINMENT, ) INC., a Florida corporation, and BOBBIE ) CELLER, an individual, ) ) Counter-Defendants. ) ) ) The CELLER LAW ORGANIZATION, INC., a Florida corporation, d/b/a/ THE CELLER ORGANIZATION, CELLER LAW, P.A., a Florida Professional Association, and CELLER ENTERTAINMENT, INC., a Florida corporation,

JOINT PRETRIAL STIPULATION

Case 0:13-cv-61678-JIC Document 71 Entered on FLSD Docket 04/07/2014 Page 2 of 51 CASE NO. 1:13-CV-61678-COHN-SELTZER Plaintiffs/Counter-Defendants, The CELLER LAW ORGANIZATION, INC. d/b/a THE CELLER ORGANIZATION, CELLER LAW, P.A., CELLER ENTERTAINMENT, INC. and BOBBIE CELLER (collectively, Celler) (The Celler Law Organization, Inc. d/b/a Celler Organization, Celler Law, P.A. and Celler Entertainment, Inc. shall sometimes be referred to collectively herein as Plaintiffs), and Defendant/Counter-Claimant, SONY PICTURES TELEVISION INC. (SPT or Defendant) (Celler and SPT shall sometimes be referred to collectively herein as the Parties), by and through their respective undersigned counsel, and pursuant to the Courts Scheduling Order [ECF No. 20] and S.D. of Fla. L.R. 16.1(e), hereby file this Joint Pre-Trial Stipulation: 1. a. SHORT CONCISE STATEMENT OF THE CASE Plaintiffs Statement

In early 2013, Plaintiffs recognized an opportunity to further market Celler Law, P.A. and increase its market share through a speaking tour of personalities known for their business success. Plaintiffs decided to engage successful business personalities in order to attract as broad a base of attendees as possible to the speaking tour. The Celler parties initially contracted four individuals for purposes of conducting a live tour known as Shark Tour and Entrepreneur Expo Presented by Bobbie Celler (Shark Tour). Specifically, in mid June of 2013, Celler Parties contracted with Daymond John, Barbara Corcoran, Robert Herjavec, and Kevin Harrington (collectively referred to as the Sharks) for their live appearances at the Shark Tour scheduled to take place on November 2, 2013, at the Orlando Convention Center. Daymond John, Barbara Corcoran, and Robert Herjavec are current members of the A.B.C. Television Show Shark Tank. Kevin Harrington was a former participant Page 2 of 51

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on the show. However, a few weeks later, Daymond John and Robert Herjavec, without warning, due to pressure from Sony, advised that they would not appear at Shark Tour. The Celler Parties filed suit against Sony on or about July 25, 2013, alleging that Sony had tortiously interfered with The Celler Parties respective business and/or contractual relationships with the Sharks, thereby causing Plaintiff to incur damages. Shortly thereafter, Barbara Corcoran also cancelled. In its Answer, Sony set forth Four Affirmative Defenses alleging: that its communications with the Sharks were privileged and therefore justified; that The Celler Parties cannot seek damages for contracts terminable at will; that Plaintiffs claims are barred by the doctrine of unclean hands as well as estoppel due to the alleged usage of trademarks and intellectual property. Also in response to Plaintiffs Amended Complaint, Sony filed a six -count Counterclaim1 against The Celler Parties based upon its registered standard character service mark SHARK TANK, and its purported ownership of an unregistered logo and unregistered Shark Tank Trade Dress, which Sony claims to use in connection with a website and a reality television series depicting people making requests for capital investments into their business. Sony asserts that its unregistered logo consists of the SHARK TANK mark written in all-capital letters and presented in blue and black colors. Sony contends that its unregistered trade dress consists of a distinctive blue and black color theme, the words SHARK TANK written in all-capital letters on the upper left-had portion of the screen, menu options presented horizontally across the top of the screen in gray, a depiction of the characters in the show immediately below the masthead, and depiction of

The various counts included in the Counterclaim are for: federal trademark infringement; federal false designation and unfair competition, federal trademark dilution, Florida trademark dilution, Florida unfair competition, and common law trademark infringement and unfair competition. ECF No. 32. Page 3 of 51

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water in the background of the page, which are displayed on a website located at http://abc.go.com/shows/shark-tank. Sony alleges that The Celler Parties are infringing its

SHARK TANK mark, the Shark Tank logo, and the Shark Tank Trade Dress through the advertisement and marketing of The Celler Parties SHARK TOUR & Entrepreneur Expo. In defending against the Counterclaim, The Celler Parties are asserting that Sonys Counterclaim is a shotgun pleading presented in contravention of the Rules of Civil Procedure because each Count incorporates, every prior allegation and claim set forth earlier in the Counterclaim, which renders those Counts subject to dismissal. The Celler Parties also assert that Sonys Counterclaim is barred by the doctrine of unclean hands because Sony tortiously interfered with The Celler Parties business relationships and efforts to complete the planning and presentation of the Shark Tour & Entrepreneur Expo. If Sonys claims are not entirely barred or otherwise subject to dismissal, The Celler Parties nevertheless contend that Sony fails to state a claim under 15 U.S.C. 1114 for infringement of its Shark Tank logo and its Shark Tank trade dress because neither are registered on the USPTOs Principal Register. Additionally, The Celler Parties assert that the trade dress Sony is seeking to enforce is not protectable. The Celler Parties further contend that their use of the SHARK TOUR mark is in its primary, descriptive sense to describe The Celler Parties services, not Sonys television show. The Celler Parties also contend that, even if Sony were to meet its burden to prove its claims, Sony cannot recover it damages or The Celler Parties profits, if any, because Sony failed to give notice of its registered rights in the SHARK TANK mark, or otherwise comply with 15 U.S.C. 1111, by displaying with the words "Registered in U.S. Patent and Trademark Office" or "Reg. U.S. Pat. & Tm. Off." or the letter R enclosed within a circle with its SHARK TANK mark, Page 4 of 51

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and The Celler Parties had no actual knowledge of Sonys registration of the SHARK TANK mark with the USPTO. Therefore, pursuant to 15 U.S.C. 1111, Sony may not receive an award of any profits or damages The Celler Parties contend that, even if Sony could recover damages in this action, Sony is not entitled to any award of enhanced damages because The Celler Parties actions were not willful, intentional or deliberate. Finally, The Celler Parties assert that, should Sony prevail on its Lanham Act Counterclaims, Sony is not entitled to attorneys fees or costs under Section 35 of the Lanham Act, 15 U.S.C. 1117, because its claims, allegations and facts do not set forth an exceptional case. b. Defendants Statement

This litigation was filed by Plaintiffs after Defendant learned of Plaintiffs misuse and exploitation of Defendants valuable trademark, trade dress and other intellectual property relating to the hit television show Shark Tank in an effort to launch a copycat Shark Tour live event. Plaintiffs repeatedly used SPTs registered SHARK TANK trademark and the distinctive Shark Tank logo and trade dress in promoting Plaintiffs proposed Shark Tour, and allege that they entered into contracts with some of the talent (called Sharks) who appear or appeared on the Shark Tank show to appear at the live Shark Tour event, all to create the appearance of an affiliation between Plaintiffs event and SPTs Shark Tank show. When the Sharks learned how Plaintiffs were using the intellectual property of the Shark Tank show, some of them informed Plaintiffs that they would not be appearing on the Shark Tour and returned their deposits. Plaintiffs then canceled their proposed Shark Tour (having not sold a single ticket). Instead, before Defendants could initiate a lawsuit against Plaintiffs for infringing their intellectual

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property, Plaintiffs filed suit against Defendant in Broward County Circuit Court and Defendant promptly removed the case to this Court and filed its Counterclaims. This lawsuit was filed preemptively by Plaintiffs (in advance of the deadline on their threat to Defendant to partner up or be sued) to try to head off federal claims for trademark and trade dress infringement. Plaintiffs Amended Complaint asserts one count against Defendant for Tortious Interference. The evidence at trial will confirm that Defendant did not wrongfully interfere with Plaintiffs purported business or contractual relationships and that any communications it had with regard to the subject of Plaintiffs were privileged and justifiable given Plaintiffs intentional efforts to hijack Defendants well known brand, including its registered trademark and distinctive logo and trade dress. Moreover, SPT will show that any actions it did take were protected by its privileged right to compete and to protect its own financial and property interests under Florida law. In any event, the evidence will make clear that Celler cannot demonstrate any damages to a reasonable certainty, and that he is barred from seeking or obtaining his claimed lost profit damages. Defendant filed six Counterclaims against Plaintiffs and Counter-Defendant Bobbie Celler for Federal Trademark Infringement, False Designation of Origin and Unfair Competition Under Federal Law, Federal Trademark Dilution, Trademark Dilution Under Florida Law, Unfair Competition Under Florida Law, and Common Law Infringement and Unfair Competition. Defendants Counterclaims arise from Plaintiffs deliberate theft of intellectual property that Defendant spent years and many millions of dollars developing and exploiting in connection with its Shark Tank show. Defendant not only obtained a federal registration for its SHARK TANK mark, but it also spent (and continues to spend) significant time and effort strengthening that mark along with the distinctive logo and trade dress it developed. Page 6 of 51 Moreover, Defendant had

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participated in discussions with ABC and the Sharks about doing their own live Shark Tank tour to further promote their brand something Plaintiffs efforts attempted to derail, dilute, or otherwise capture. Defendant seeks primarily injunctive relief on its Counterclaims, and will ask the Court to also award appropriate attorneys fees at the conclusion of the case. 2. BASIS OF FEDERAL JURISDICTION

The Parties agree that this Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. 1331, 1332, 1367, and 1338. Defendant states that the Court also has jurisdiction pursuant to 15 U.S.C. 1114, 1116, 1121, and 1125(a). SPTs Counterclaims assert state statutory and common law claims for common law unfair competition, trademark infringement, dilution, and deceptive and unfair trade practices which are joined with substantial and related claims under the federal trademark laws, and this Court has jurisdiction as to such claims under 28 U.S.C. 1338(b). 3. a. b. PLEADINGS RAISING THE ISSUES The Celler Parties Amended Complaint [ECF NO. 23]; Defendant Sony Pictures Television Inc.s Answer, Affirmative Defenses and

Counterclaims [ECF NO. 32]; and c. The Celler Parties Answer and Affirmative Defenses to Defendants Counterclaim

[ECF NO. 41]. 4. a. LIST OF ALL UNDISPOSED OF MOTIONS OR OTHER MATTERS REQUIRING ACTION BY THE COURT The Celler Parties Motion In Limine to Preclude Defendant/Counter-Plaintiff

Sony Pictures Television from Presenting Evidence, Testimony or Argument as to any Definition

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or Description of its Trade Dress Other than the Definition It Alleged in the Counterclaim [ECF NO. 51]; b. The Celler Parties Motion In Limine to Exclude the Defendant/Counter-Plaintiff

Sony Pictures Television from Presenting Evidence, Testimony or Argument as to any Allegedly Infringing Conduct that is not the Subject Matter of this Action [ECF NO. 52]; c. The Celler Parties Motion In Limine to Exclude the Defendant/Counter-Plaintiff

Sony Pictures Television from Presenting Evidence, Testimony or Argument Regarding any Purported Marketplace Examples of Television Shows and Tours that do not Contain a Shark Tank or Shark Tour Trademark [ECF NO. 53]; d. The Celler Parties Motion In Limine to Exclude the Defendant/Counter-Plaintiff

Sony Pictures Television from Presenting Evidence, Opinion or Argument in Violation of the Rules Relating to Expert Opinion and this Courts Scheduling Order [ECF NO. 54]; e. The Celler Parties Motion In Limine to Strike Previously Undisclosed Documents

and Other Exhibits from Defendant/Counter-Plaintiff Sony Pictures Televisions Exhibit List and Exclude their Use at Trial [ECF NO. 55]; f. The Celler Parties Motion In Limine to Strike Previously Undisclosed Witnesses

from Defendant/Counter-Plaintiff Sony Pictures Televisions Witness List and Exclude Their Testimony at Trial [ECF NO. 57]; g. Defendant/Counter-Claimant Sony Pictures Television Inc.s Motion In Limine to

Exclude Evidence Regarding Plaintiffs/Counterdefendants Purported Lost Profit Damages and Incorporated Memorandum of Law [ECF NO. 49];

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h.

Defendant/Counter-Claimant Sony Pictures Television Inc.s Motion In Limine to

Exclude Evidence Regarding Irrelevant Alleged Third-Party Uses of Shark and Incorporated Memorandum of Law [ECF NO. 50]; i. Defendant/Counter-Claimant Sony Pictures Television, Inc.s Cross Motion In

Limine to Strike Plaintiffs Previously Undisclosed Documents and Other Exhibits from Plaintiffs Exhibit List and Incorporated Memorandum of Law [ECF NO. 59]; j. k. Joint Stipulation for Entry of Agreed Protective Order [ECH NO. 60]; and Joint Motion for Permission to Bring Electronic Equipment into the Courthouse

During the Trial Period [ECF NO. 62]. 5. CONCISE STATEMENT OF UNCONTESTED FACTS WHICH WILL REQUIRE NO PROOF AT TRIAL

General Facts1 a. Bobbie Celler is a personal injury attorney licensed in Florida, with his principal

places of business in Coral Springs and Boca Raton, Florida; b. The Celler Law Organization, d/b/a The Celler Organization, now known as The

Celler Organization, Inc., is a Florida corporation with its principal place of business located in Boca Raton, Florida; c. d. The Celler Organization was incorporated on February 19, 2013; Celler Law, P.A., is a Florida Professional Association, with its principal place of

business located in Boca Raton, Florida; e. Celler Entertainment, Inc., is a Florida corporation, with its principal place of

business located in Boca Raton, Florida;


1

The Parties were unable to reach agreement as to some of the facts listed herein, although a number of them are undisputed. Both parties reserve the right to object to the facts listed herein. Page 9 of 51

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f. g.

Celler Entertainment, Inc. was incorporated on April 1, 2013; Bobbie Celler is the founder, president and Chief Executive Officer of The Celler

Organization, Inc. and is its registered agent; h. i. j. California; k. Daymond John, Barbara Corcoran, Robert Herjavec and Kevin Harrington Bobbie Celler is the founder, director and registered agent for Celler Law, P.A.; Bobbie Celler is the founder and registered agent for Celler Entertainment, Inc.; SPT is a Delaware corporation, with its principal place of business in Culver City,

(collectively, the Sharks) are (John, Corcoran and Herjavec) or were (Harrington) entrepreneur cast members of the Shark Tank show; l. The Shark Tank show features business pitches from aspiring entrepreneurs to a

panel of potential investors who are called the Sharks on the show; m. SPT filed an intent-to-use trademark application for SHARK TANK in the United

States Patent and Trademark Office (PTO) on September 18, 2008 under Section 1(b) of the Lanham Act; n. In response to inquiry by the PTO, SPT stated that the SHARK TANK mark had no

significance in the relevant trade or industry or as applied to entertainment services in the nature of an ongoing reality television series, nor did it have any geographical significance; o. p. Celler is in no way affiliated with the Shark Tank show, SPT or ABC; The Shark Tour was scheduled to take place on November 2, 2013 at the Orange

County Convention Center in Orlando, Florida; q. Bobbie Celler was aware of the television show Shark Tank prior to Cellers

creation of the Shark Tour mark and event; Page 10 of 51

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r. s.

The Shark Tour website was launched on or about July 16, 2013; On July 3, 2013, pursuant to Section 1(b) of the Lanham Act, The Celler

Organization submitted a trademark application for registration of SHARK TOUR (serial no. 86001456) seeking to register SHARK TOUR in standard characters for use in connection with the following services: Arranging, organizing, conducting, and hosting social entertainment events; Education services, namely, providing live and on-line classes, courses, seminars, videos, special events and workshops in the field of business and entrepreneurship in International Class 41; t. On August 2, 2013, counsel for SPT sent a letter to Bobbie Celler and The Celler

Organization demanding that they cease from using, and take down from the Shark Tour website any of SPTs intellectual property and that they withdraw the application for registration of SHARK TOUR; u. The Celler Parties have not conducted, hosted or presented any event under the

SHARK TOUR mark; v. Neither SPT nor ABC has yet conducted, hosted or presented a live exposition or

touring version of the Shark Tank show w. Celler has not produced and distributed an ongoing reality television series.

ISSUES OF FACT REMAINING TO BE LITIGATED AT TRIAL2 Disputed Facts that the Celler Parties intend to litigate at trial a) Whether the Celler Parties, during the time period of early June through late July, 2013, were organizing an event known as Shark Tour and Entrepreneur Expo Presented by Bobbie Celler (Shark Tour).
2

By jointly signing this document, the Parties do not concede that all facts contained herein are appropriate to be considered at the trial, and do not waive any objections or any other rights they have. Page 11 of 51

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b) Whether the Celler Parties intended for The Shark Tour to take place on November 2, 2013, at the Orlando Convention Center. c) Whether the Celler Parties intended to conduct, host and present a live exposition or touring event featuring the presentation of business concepts to some of the Sharks from the Shark Tank show; d) Whether the Celler Parties contracted with Daymond John on or about June 17, 2013 for his appearance at Shark Tour. e) Whether the Celler Parties contracted with Barbara Corcoran on or about June 17, 2013 for her appearance at the Shark Tour. f) Whether the Celler Parties contracted with Kevin Harrington on or about June 26, 2013 for his appearance at the Shark Tour. g) Whether the Celler Parties contracted with Robert Herjavec on or about June 20, 2013 for his appearance at the Shark Tour. h) Whether Bobbie Celler visited Sonys production studios in Las Angeles, CA, on or around July 10, 2013. i) Whether during this visit, Bobbie Celler met with and interviewed Barbara Corcoran and Robert Herjavec while at Sonys Production Studios for purposes of creating a promotional video for the Shark Tour. j) Whether between July 21-24, 2013, Sony visited the Shark Tour website seventeen (17) times. k) Whether Sony informed the Sharks that it believed Celler was improperly using its intellectual property regarding the show Shark Tank.

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l) Whether on or about July 24, 2013, representatives of Daymond John and Robert Herjavec, informed The Celler Parties the two sharks would not participate in Shark Tour due to the actions of Sony. m) Whether on or about August 8, 2013, a representative of Barbara Corcoran informed The Celler Parties that she would not be participating in Shark Tour due to a scheduling conflict. n) Whether the Celler Parties were developing a website, at the domain name sharktour2013.com, which was to be a promotional tool and the an outlet through which tickets would have beenbe sold for Shark Tour and the Celler Parties when the ticket sale effort was to be activated.; o) Whether, as a result of the engaged Sharks cancelling their contracts, the Celler Parties cancelled the Shark Tour in 2013, and never offered for sale nor sold any tickets.; p) Whether the Orlando Convention Center had been leased for the November 2, 2013 Shark Tour event. Celler incurred the expnse even though the event was cancelled. Celler also incurred other out of pocket expenses in the Shark Tour endeavor. q) Whether Shark Tour was cancelled after the Sharks informed Celler they would not be participating in Shark Tour. r) Whether or not Sony unjustifiably interfered with the Sharks participation in Shark Tour s) Whether or not SPT unjustifiably interfered with the Sharks participation in Shark Tour; t) Whether Sony does not have exclusive rights in John, Corcoran, Herjavec, or Harringtons name or likeness. u) John, Corcoran and Herjavec are permitted to engage in employment outside the Shark Tank television series. Page 13 of 51

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v) Whether SPT intends to conduct, host and present a live exposition or touring version of the Shark Tank show; w) Whether or not the Celler Parties suffered damages proximately caused by Sony x) Whether SPT was granted a federal trademark registration for the standard character SHARK TANK word mark on November 24, 2009 (reg. no. 3716584) for use in connection with entertainment services in the nature of an ongoing reality television series, involving presentation of business concepts; in International Class 41; y) The SHARK TANK mark is used by the American Broadcasting Company (ABC) through its televising of the Shark Tank television show and its production and display of a website, located on the Internet at abc.go.com/shows/shark-tank, promoting the television show; z) SPT also promotes and advertises the Shark Tank show through a variety of means; aa) Whether Sony does not have a trademark registration for the word Shark alone. bb) Whether Sony is not the owner of any copyrighted photograph that has been displayed on the website located at sharktour2013.com, and Sony has not asserted a copyright infringement claim in this action. cc) The SHARK TANK mark is used by the American Broadcasting Company (ABC) through its televising of the SHARK TANK television show and its production and display of a website, located on the Internet at abc.go.com/shows/shark-tank, promoting the television show. dd) Neither the SHARK TANK television nor ABCs SHARK TANK website display the words "Registered in U.S. Patent and Trademark Office" or "Reg. U.S. Pat. & Tm. Off." or the letter R enclosed within a circle with the SHARK TANK trademark. Page 14 of 51

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ee) Bobbie Celler is the creator and presenter of Shark Tour, which was promoted by Celler as featuring some of the Sharks seen on the Shark Tank show; ff) Whether Sonys Shark Tank service mark describes the services SPT offers thereunder, or any ingredient or characteristic thereof.; gg) Whether the Shark Tank television or ABCs SHARK TANK website display the words "Registered in U.S. Patent and Trademark Office" or "Reg. U.S. Pat. & Tm. Off." or the letter R enclosed within a circle with the SHARK TANK trademark; hh) Whether SPTs SHARK TANK mark, logo, and trade dress have acquired secondary meaning among the consuming public; ii) Whether the Shark Tank logo and trade dress are non-functional;

jj) Whether SPTs SHARK TANK mark, logo, and trade dress are distinctive; kk) Whether SPTs SHARK TANK service mark is strong or weak.; ll) Whether SPT popularized the term Shark to refer to a successful entrepreneur.; mm) Whether the term shark was commonly used to describe tough entrepreneurs prior

to SPTs incorporation of that term into its SHARK TANK mark.; nn) Whether SPT has a USPTO registration for the logo consisting of the SHARK TANK mark written in all-capital letters and presented in blue and black colors (the Shark Tank Logo).; oo) Whether SPT has a USPTO registration for the alleged Shark Tank trade dress.; pp) Whether SPT authorized Celler to use the SHARK TANK mark, logo, and/or trade dress; qq) Whether Bobbie Celler had actual notice and knowledge of SPTs ownership and registration of the SHARK TANK mark, logo, and trade dress prior to Cellers promotion of its Shark Tour; Page 15 of 51

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rr) Whether Cellers use of the terms SHARK and TOUR has been in their primary, descriptive sense to describe the Cellers goods or services, not SPTs.; ss) The Celler Parties had a bona fide intention to use the SHARK TOUR service mark in connection with selling tickets to, hosting, and presenting the Expo on November 2, 2013 and other future events. tt) If Sony has any enforceable rights in the SHARK TANK service mark, whether purchasers or prospective purchasers of The Celler Parties social entertainment services and/or education services are likely to believe that: (1) any such services come from the same source as SPTs ongoing reality television series offered under the asserted mark; or (2) any services offered by The Celler Parties are related to or associated with the source of SPTs ongoing reality television series offered under the asserted mark.; uu) Whether the Shark Tour mark is similar to the SHARK TANK mark.; vv) Whether the parties offer similar services under the SHARK TANK mark at issue.; ww) Whether the parties use similar retail outlets to offer their services.;

xx) Whether the prospective purchasers of the parties respective services are similar.; yy) Whether the parties use similar advertising media to market their services to consumers; zz) Whether The Celler Parties intended to confuse consumers into believing the Tour came from the same source as the Shark Tank television show. aaa) Whether any consumers interested in purchasing tickets to The Celler Parties Expo

were actually confused as to whether it was sponsored, affiliated or approved by the same entity that produces the Shark Tank television show.;

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bbb)

If SPT has any enforceable service mark rights and if consumers are likely to

experience confusion, whether SPT has suffered any actual damages and, if so, the dollar amount of such actual damages.; ccc) If SPT has any enforceable service mark and if consumers are likely to experience

confusion, whether The Celler Parties earned any profit arising out of the mark at issue, from the date that such became protectable to the presaent date. And, if The Celler Parties are determined to have infringed SPTs mark, logo or trade dress, the amount of such profits that may be subject to disgorgement, if any, as a possible damages recovery.; ddd) eee) Whether or not The Celler Parties acted willfully Whether SPT produces and distributes television shows;

fff) Whether SPT is the producer and owner of the television show Shark Tank, featured on ABC; ggg) Whether Shark Tank premiered on ABC in August 2009, and is now in its fifth

season on ABC, running consistently during ABCs prime time television programing schedule; hhh) The extent to which Shark Tank has been advertised and promoted since it

premiered five (5) years ago; iii) Whether SPT has been using the SHARK TANK trademark continuously since August 2009 in the field of entertainment services involving the presentation and valuation of business concepts; jjj) Whether, as of 2012, the Shark Tank show averaged seven million viewers an episode, and was the most watched program on Friday nights in the 18-49 year old demographic;

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kkk) 2013;

Whether the Shark Tank show averaged over eight million viewers an episode in

lll) Whether, in 2012 and 2013, Shark Tank received Emmy nominations for Outstanding Reality Program, in 2012 received a nomination for a Critics Choice Television Award for Best Reality Series, and in 2013, received a nomination for a Producers Guild Award; mmm) Whether the official Shark Tank show website, located at

abc.go.com/shows/shark-tank (Shark Tank Website), featured during the relevant time period a distinctive trade dress, or look and feel, that included, among other things, a blue and black color theme with varying shades of blue, the words SHARK TANK written in all-capital letters on the upper left-hand portion of the screen and presented in blue and black, menu options presented horizontally across the top of the screen in gray, the SHARK TANK Logo (the SHARK TANK mark written in all capital letters with teeth marks in the K of TANK), a depiction of the characters in the show immediately below the masthead, a depiction of water in the background of the page, and a depiction of circling sharks; nnn) Whether elements of SPTs trade dress appear on the Shark Tank show, and in

advertisements and promotional materials for the show; ooo) Whether television commercials for the Shark Tank show depict sharks swimming

in dark blue water, circling around the Shark Tank Logo; ppp) Whether, as a result of SPTs nearly five years of continuous use and exhibition of

its SHARK TANK mark, Logo, and trade dress, SPT has acquired substantial goodwill, and the SHARK TANK mark, Logo, and Shark Tank trade dress have become clearly associated with SPTs hit show; Page 18 of 51

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qqq)

Whether, through its adoption and prior use in interstate commerce, SPT owns

common law trademark and trade dress rights throughout the United States in connection with the Shark Tank show; rrr) Whether the Shark Tank Logo and trade dress have been displayed throughout the United States via numerous media outlets; sss) The audience for SPTs services relating to Shark Tank.

ttt) The strength and fame of SPTs SHARK TANK trademark, Logo, and trade dress; uuu) Whether the Shark Tank Logo and trade dress are well known and have come to be

associated exclusively with SPTs Shark Tank show; vvv) Whether SPTs SHARK TANK mark, Logo, and trade dress have acquired

secondary meaning among the consuming public; www) xxx) yyy) Whether the Shark Tank Logo and trade dress are non-functional; Whether SPTs SHARK TANK mark, Logo, and trade dress are distinctive; Whether the Shark Tank Logo and trade dress were distinctive before Celler began

offering its goods and services for Shark Tour for sale; zzz) Whether Celler used SPTs SHARK TANK mark, Logo, and trade dress, and also

ABCs trademark and/or logo, in the advertisement, marketing, sale, and offering for sale of goods and services in connection with Shark Tour; aaaa) Whether Celler is using/has used a mark that infringes upon SPTs registered

SHARK TANK trademark by using the trademark in connection with the sale or offer to sell goods or services; using the trademark in commerce; and, using the trademark in a manner that is likely to: cause confusion, mistake, or deception as to the source, origin, affiliation, approval, or sponsorship of Cellers goods or services; Page 19 of 51

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bbbb)

Whether, in determining the significance of third-party uses, courts must consider

the entire name a third-party uses, as well as the kind of business in which the user is engaged; cccc) dddd) Whether trade dress protection is appropriate to protect websites; Whether SPTs SHARK TANK trademark, Logo, and Trade Dress are famous and

distinctive, either inherently or through acquired distinctiveness; eeee) Whether Cellers use of its purported Shark Tour trademark and trade dress began

after SPTs SHARK TANK trademark, Logo, and Trade Dress became famous; ffff) Whether Cellers use of its purported Shark Tour trademark and trade dress is likely

to cause dilution by blurring and/or dilution by tarnishment of SPTs famous SHARK TANK trademark, Logo, and Trade Dress; gggg) Whether Cellers purported Shark Tour trademark and trade dress was first used

after October 6, 2006; hhhh) Whether Celler made changes to the Shark Tour website in response to SPTs

August 2, 2013 demand letter; iiii) Whether Celler used SPTs SHARK TANK mark, Logo, and/or trade dress without SPTs authorization; jjjj) Whether Celler either had actual notice and knowledge and/or had constructive notice, of SPTs ownership and registration of the SHARK TANK mark, as well as the SHARK TANK Logo, and trade dress, prior to Cellers adoption and use of SPTs SHARK TANK mark, Logo, and trade dress in promoting its Shark Tour; kkkk) Whether Cellers use of Shark Tour, the SHARK TANK trademark, SHARK

TANK Logo and ABC logo, the Sharks, and the putative trade dress of Cellers Page 20 of 51

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promotional materials create a likelihood of confusion with SPTs SHARK TANK trademark, Logo, and trade dress; llll) Whether Cellers promotional materials suggest to consumers that Cellers goods and services are in some manner connected with, sponsored by, affiliated with, or related to SPT, SPTs business, and/or SPTs goods and services; mmmm) Whether Cellers conduct in using SPTs SHARK TANK mark, Logo, and trade

dress was willful and intentional; nnnn) Cellers intent to copy the SHARK TANK mark, Logo, and trade dress creates a

presumption of likelihood of confusion; oooo) Whether Cellers use of SPTs SHARK TANK mark, Logo, and trade dress, and

his additional and unauthorized use of ABCs trademark and logo, are likely to cause confusion or to deceive customers as to the affiliation, association or connection of Cellers Shark Tour with SPTs Shark Tank; and pppp) Whether Cellers use of SPTs SHARK TANK mark, Logo, and trade dress, unless

enjoined, threatens to dilute, blur, or tarnish the distinctive quality of SPTs SHARK TANK mark, Logo, and trade dress; qqqq) Whether Shark Tour is a logical expansion of SPTs trademark rights given that

tour is frequently used by other entertainment properties and has been considered by SPT to describe live tours following on the heels of successful television and other entertainment shows (e.g. Idol Tour to describe the live tour promoting the valuable American Idol trademark and television show); rrrr) Whether Plaintiffs continued use of their proposed Shark Tour trademark and

other infringing trade dress threatens to confuse the public about the origin or source of the Page 21 of 51

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Shark Tour, dilute SPTs valuable intellectual property and should be enjoined to prevent irreparable harm; ssss) Whether SPT has proved and can recover any damages on any of the state or federal

Counterclaims; tttt) Whether SPT intentionally and without justification interfered with any of Plaintiffs contracts relating to their proposed Shark Tour event; uuuu) Whether SPTs communications relating to Plaintiffs and their Shark Tour event

were at least in part privileged attempts to protect SPTs property and financial interests; vvvv) Whether SPTs alleged conduct proximately caused any legally cognizable injury

to Plaintiffs, or any of them; wwww) Whether Plaintiffs can prove any alleged damages to a reasonable certainty and, if

so, what damages can it prove; and xxxx) Whether the Celler Parties acted in a manner in relation to SPTs intellectual

property that they should be barred from pursuing their tortious interference claim based on the doctrine of unclean hands yyyy) On August 19, 2013, the United States Patent and Trademark Office (USPTO)

issued an Office Action (Official Letter) about The Celler Organizations Application Serial No. 86001456 for registration of SHARK TOUR, wherein it stated that: The trademark examining attorney has searched the Offices database of registered and pending marks and has found no conflicting marks that would bar registration under Trademark Act Section 2(d). TMEP 704.02; see 15 U.S.C. 1052(d). zzzz) In February 2013, Sony submitted a Letter of Protest to the USPTO seeking to have

the USPTO refuse to register The Celler Organizations SHARK TOUR service mark. Page 22 of 51

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aaaaa)

On March 19, 2014, the USPTO issued a Notice of Publication, which states that:

The mark of the application identified appears to be entitled to registration. The mark will, in accordance with Section 12(a) of the Trademark Act of 1946, as amended, be published in the Official Gazette on the date indicated above for the purpose of opposition by any person who believes he will be damaged by the registration of the mark. If no opposition is filed within the time specified by Section 13(a) of the Statute or by rules 2.101 or 2.102 of the Trademark Rules, the Commissioner of Patents and Trademarks may issue a notice of allowance pursuant to section 13(b) of the Statute. bbbbb) As a result of the engaged Sharks cancelling their contracts, the Celler Parties

cancelled the Shark Tour and never offered for sale nor sold any tickets. ccccc) Despite their bona fide intention to use the SHARK TOUR service mark, after the

Celler Organization filed the application to register SHARK TOUR, The Celler Parties did not conduct, host and present the Shark Tour on November 2, 2013 because the celebrities that the Celler Organization had contracted to speak at the Shark Tour refused to attend and participate. ddddd) The extent of SPTs rights in the Shark Tank Logo identified in Paragraph 21 of its

Counterclaim. eeeee) Whether the Shark Tank Logo has acquired secondary meaning among consumers

and/or is otherwise subject to protection under the Lanham Act; fffff) Whether the official Shark Tank show website, located at

abc.go.com/shows/shark-tank (Shark Tank Website), featured during the relevant time period protectable trade dress, or look and feel, that included, among other things, a blue and black color theme, the words SHARK TANK written in all-capital letters on the upper Page 23 of 51

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left-hand portion of the screen, menu options presented horizontally across the top of the screen in gray, a depiction of the characters in the show immediately below the masthead, and a depiction of water in the background of the page; ggggg) Whether the Shark Tank website is a product or service separate apart from the

Shark Tank television show.; hhhhh) Whether SPT has rights in the trade dress of the official Shark Tank show website

located at abc.go.com/shows/shark-tank. iiiii) Whether SPT owns common law rights throughout the United States in connection

with the Shark Tank trademark and trade dress; jjjjj) kkkkk) Whether the Shark Tank trade dress is functional. Whether the Shark Tank trade dress has acquired secondary meaning among

consumers and/or is otherwise subject to protection under the Lanham Act. lllll) Whether, SPT has acquired substantial goodwill in the SHARK TANK mark, logo,

and trade dress; mmmmm) Whether, the SHARK TANK logo and trade dress were distinctive before Celler began offering its goods and services for sale; nnnnn) ooooo) Whether the parties or their respective services compete against each other.; If SPT has any enforceable rights in the Shark Tank Logo and/or the Shark Tank

trade dress, whether purchasers or prospective purchasers of The Celler Parties social entertainment services and/or education services are likely to believe that: (1) any such services come from the same source as SPTs ongoing reality television series offered under the asserted logo and/or trade dress; or (2) any services offered by The Celler Parties

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are related to or associated with the source of SPTs ongoing reality television series offered under the asserted logo and/or trade dress. ppppp) qqqqq) Whether there is any trade dress associated with Cellers Shark Tour; Whether the Internet website located at sharktour2013.com is similar to the Shark

Tank Trade Dress. rrrrr) sssss) Whether the Shark Tour logo is similar to the Shark Tank logo; Whether the parties offer similar services under the Shark Tank logo and/or trade

dress at issue; ttttt) uuuuu) vvvvv) Whether the parties use similar retail outlets to offer their services; Whether the prospective purchasers of the parties respective services are similar. Whether The Celler Parties used the Shark Tank logo on the website located at

sharktour2013.com to suggest affiliation, sponsorship or source, or whether it was used as a truthful representation of biographical information of the celebrities who The Celler Organization had contracted to appear at the Shark Tour; wwwww) If SPT has any enforceable rights in the logo and/or trade dress and if consumers are likely to experience confusion, whether Sony has suffered any actual damages and, if so, the dollar amount of such actual damages.; xxxxx) If SPT has any enforceable logo and/or trade dress rights and if consumers are

likely to experience confusion, whether The Celler Parties earned any profit arising out of the logo and/or trade dress at issue, from the date that such became protectable to the present date. And, if The Celler Parties are determined to have infringed SPTs mark, logo or trade dress, the amount of such profits that may be subject to disgorgement, if any, as a possible damages recovery. Page 25 of 51

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yyyyy) zzzzz)

Whether or not The Celler Parties acted willfully Sony has not asserted a claim in this action for cyberpiracy under 15 U.S.C.

1125(d) with regard to the domain name sharktour2013.com or any other domain name. aaaaaa) The extent to which SPT is engaging in substantially exclusive use of the Shark

Tank mark, logo and/or trade dress; bbbbbb) cccccc) The nature and extent of use of the same or similar mark by third parties; Whether the registered Shark Tank service mark is famous among the general

consuming public of the United States, and if so, when it became famous; dddddd) Whether the registered Shark Tank service mark is famous in Florida, and if so,

when it became famous in Florida; eeeeee) Separate and apart from any fame the registered SHARK TANK service mark

might have, whether the Shark Tank Trade Dress is famous among the general consuming public of the United States, and if so, when it became famous; ffffff) Separate and apart from any fame the registered SHARK TANK service mark

might have, whether the Shark Tank trade dress is famous in Florida, and if so, when it became famous in Florida; gggggg) Whether the Shark Tank Logo is famous among the general consuming public of

the United States, and if so, when it became famous; hhhhhh) Whether the Shark Tank Logo is famous in Florida, and if so, when it became

famous in Florida; iiiiii) Whether the parties offer dissimilar services under the mark, logo and/or trade

dress at issue;

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jjjjjj)

If SPTs service mark is distinctive and famous, whether such distinctiveness has

been impaired as a consequence of Cellers use of any mark on dissimilar services; kkkkkk) If SPTs logo is distinctive and famous, whether such distinctiveness has been

impaired as a consequence of Cellers use of any logo on dissimilar services; llllll) If SPTs trade dress is distinctive and famous, whether such distinctiveness has

been impaired as a consequence of Cellers use of any trade dress on dissimilar services; mmmmmm) Whether Cellers marketing of the SHARK TOUR, unless enjoined,

threatens to dilute the distinctive quality, if any, of SPTs SHARK TANK mark, logo, or trade dress; nnnnnn) If any distinctiveness of SPTs mark has been impaired, whether SPT has any

suffered actual damages as a result thereof and, if so, the dollar amount of such actual damages; oooooo) Whether SPT has ever conducted, hosted or presented a live SHARK TANK

exposition or tour; pppppp) Whether The Celler Parties compete with or have competed with SPT with regard

to any offering of services in the nature of an ongoing reality television series; qqqqqq) rrrrrr) ssssss) Whether Cellers acts involved a consumer transaction; Whether Cellers conduct was unconscionable; If Sony has any enforceable rights in the Shark Tank mark, logo and/or trade dress,

whether purchasers or prospective purchasers of The Celler Parties services are likely to believe that: (1) any such services come from the same source as SPTs ongoing reality television series offered under the asserted logo and/or trade dress; or (2) any services

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offered by The Celler Parties are sponsored or approved by the source of SPTs ongoing reality television series offered under the asserted logo and/or trade dress; tttttt) If Celler has committed unconscionable acts through a consumer transaction,

whether SPT has any suffered actual damages as a result thereof and, if so, the dollar amount of such actual damages; uuuuuu) Whether Celler used the SHARK TANK mark, logo, and trade dress in in

connection with promoting Shark Tour; vvvvvv) Whether Cellers marketing of Shark Tour led consumers to believe that Cellers

goods and services are in some manner sponsored by, affiliated with, or authorized by SPT, SPTs business, and/or SPTs goods and services; and wwwwww) Whether Cellers conduct was willful and intentional;

Disputed Facts that SPT intends to litigate at trial a. b. SPT produces television shows. Daymond John, Robert Herjavec, Barbara Corcoran, and Kevin Harrington appear

or appeared from time to time on the SPT-produced television show Shark Tank that has aired on ABC television since 2009; c. Daymond John, Barbara Corcoran, Robert Herjavec and Kevin Harrington

(collectively, the Sharks) are (John, Corcoran and Herjavec) or were (Harrington) entrepreneur cast members of the Shark Tank show; d. The Celler Parties developed a website, at the domain name sharktour2013.com,

which was to be a promotional tool and an outlet through which tickets would be sold for Shark Tour; Page 28 of 51

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e. f.

The Celler Parties cancelled the Shark Tour in 2013, and never sold any tickets; SPTs Shark Tank show features business pitches from aspiring entrepreneurs to a

panel of potential investors who are called the Sharks on the show; g. SPT filed an intent-to-use trademark application for SHARK TANK in the United

States Patent and Trademark Office (PTO) on September 18, 2008 under Section 1(b) of the Lanham Act; h. In response to inquiry by the PTO, SPT stated that the SHARK TANK mark had no

significance in the relevant trade or industry or as applied to entertainment services in the nature of an ongoing reality television series, nor did it have any geographical significance; i. SPT was granted a federal trademark registration for the standard character

SHARK TANK word mark on November 24, 2009 (reg. no. 3716584) for use in connection with entertainment services in the nature of an ongoing reality television series, involving presentation of business concepts in International Class 41; The SHARK TANK mark is used by the American Broadcasting Company (ABC) through its televising of the Shark Tank television show and its production and display of a website, located on the Internet at abc.go.com/shows/shark-tank, promoting the television show. SPT also promotes and advertises the Shark Tank show through a variety of means; j. k. Celler is in no way affiliated with the Shark Tank show, SPT or ABC; The Shark Tour was scheduled to take place on November 2, 2013 at the Orange

County Convention Center in Orlando, Florida which was the only date and venue ever booked for the Shark Tour;

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l.

Daymond John, Barbara Corcoran, Robert Herjavec and Kevin Harrington

(collectively, the Sharks) are (John, Corcoran and Herjavec) or were (Harrington) entrepreneurs and investor cast members of the Shark Tank show; m. Bobbie Celler was aware of SPTs Shark Tank show prior to Cellers creation and

marketing of the Shark Tour mark and event; n. o. The Shark Tour website was launched on or about July 16, 2013; On July 3, 2013, The Celler Organization submitted a trademark application for

registration of SHARK TOUR (serial no. 86001456) seeking to register SHARK TOUR in standard characters for use in connection with the following services: Arranging, organizing, conducting, and hosting social entertainment events; Education services, namely, providing live and on-line classes, courses, seminars, videos, special events and workshops in the field of business and entrepreneurship in International Class 41; p. On August 2, 2013, counsel for SPT sent a letter to Bobbie Celler and The Celler

Organization demanding that they cease from using, and take down from the Shark Tour website any of SPTs intellectual property and that they withdraw the application for registration of SHARK TOUR; q. The Celler Parties have not conducted, hosted or presented any event under the

SHARK TOUR mark; r. The Celler Parties intended to conduct, host and present a live exposition or touring

event featuring the presentation of business concepts to some of the Sharks from the Shark Tank show; s. Neither SPT nor ABC has yet conducted, hosted or presented a live exposition or

touring version of the Shark Tank show; Page 30 of 51

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t.

SPT intends to conduct, host and present a live exposition or touring version of the

Shark Tank show; and u. v. w. Celler has not produced and distributed an ongoing reality television series. Whether SPT produces and distributes television shows; Whether SPT is the producer and owner of the television show Shark Tank,

featured on ABC; x. Whether Shark Tank premiered on ABC in August 2009, and is now in its fifth

season on ABC, running consistently during ABCs prime time television programing schedule; y. The extent to which Shark Tank has been advertised and promoted since it

premiered five (5) years ago; z. Whether SPT has been using the SHARK TANK trademark continuously since

August 2009 in the field of entertainment services involving the presentation and valuation of business concepts; aa. Whether, as of 2012, the Shark Tank show averaged seven million viewers an

episode, and was the most watched program on Friday nights in the 18-49 year old demographic; bb. 2013; cc. Whether, in 2012 and 2013, Shark Tank received Emmy nominations for Whether the Shark Tank show averaged over eight million viewers an episode in

Outstanding Reality Program, in 2012 received a nomination for a Critics Choice Television Award for Best Reality Series, and in 2013, received a nomination for a Producers Guild Award; dd. Whether the official Shark Tank show website, located at

abc.go.com/shows/shark-tank (Shark Tank Website), featured during the relevant time period a distinctive trade dress, or look and feel, that included, among other things, a blue and black color Page 31 of 51

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theme with varying shades of blue, the words SHARK TANK written in all-capital letters on the upper left-hand portion of the screen and presented in blue and black, menu options presented horizontally across the top of the screen in gray, the SHARK TANK Logo (the SHARK TANK mark written in all capital letters with teeth marks in the K of TANK), a depiction of the characters in the show immediately below the masthead, a depiction of water in the background of the page, and a depiction of circling sharks; ee. Whether elements of SPTs trade dress appear on the Shark Tank show, and in

advertisements and promotional materials for the show; ff. Whether television commercials for the Shark Tank show depict sharks swimming

in dark blue water, circling around the Shark Tank Logo; gg. Whether, as a result of SPTs nearly five years of continuous use and exhibition of

its SHARK TANK mark, Logo, and trade dress, SPT has acquired substantial goodwill, and the SHARK TANK mark, Logo, and Shark Tank trade dress have become clearly associated with SPTs hit show; hh. Whether, through its adoption and prior use in interstate commerce, SPT owns

common law trademark and trade dress rights throughout the United States in connection with the Shark Tank show; ii. Whether the Shark Tank Logo and trade dress have been displayed throughout the

United States via numerous media outlets; jj. kk. ll. The audience for SPTs services relating to Shark Tank; The strength and fame of SPTs SHARK TANK trademark, Logo, and trade dress; Whether the Shark Tank Logo and trade dress are well known and have come to be

associated exclusively with SPTs Shark Tank show; Page 32 of 51

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mm.

Whether SPTs SHARK TANK mark, Logo, and trade dress have acquired

secondary meaning among the consuming public; nn. oo. pp. Whether the Shark Tank Logo and trade dress are non-functional; Whether SPTs SHARK TANK mark, Logo, and trade dress are distinctive; Whether the Shark Tank Logo and trade dress were distinctive before Celler began

offering its goods and services for Shark Tour for sale; qq. Whether Celler used SPTs SHARK TANK mark, Logo, and trade dress, and also ABCs

trademark and/or logo, in the advertisement, marketing, sale, and offering for sale of goods and services in connection with Shark Tour; rr. Whether Celler is using/has used a mark that infringes upon SPTs registered SHARK

TANK trademark by using the trademark in connection with the sale or offer to sell goods or services; using the trademark in commerce; and, using the trademark in a manner that is likely to: cause confusion, mistake, or deception as to the source, origin, affiliation, approval, or

sponsorship of Cellers goods or services; ss. Whether, in determining the significance of third-party uses, courts must consider

the entire name a third-party uses, as well as the kind of business in which the user is engaged; tt. uu. Whether trade dress protection is appropriate to protect websites; Whether SPTs SHARK TANK trademark, Logo, and Trade Dress are famous and

distinctive, either inherently or through acquired distinctiveness; vv. Whether Cellers use of its purported Shark Tour trademark and trade dress began after

SPTs SHARK TANK trademark, Logo, and Trade Dress became famous; ww. Whether Cellers use of its purported Shark Tour trademark and trade dress is likely to

cause dilution by blurring and/or dilution by tarnishment of SPTs famous SHARK TANK Page 33 of 51

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trademark, Logo, and Trade Dress; xx. Whether Cellers purported Shark Tour trademark and trade dress was first used

after October 6, 2006; yy. Whether Celler made changes to the Shark Tour website in response to SPTs

August 2, 2013 demand letter; zz. Whether Celler used SPTs SHARK TANK mark, Logo, and/or trade dress without

SPTs authorization; aaa. Whether Celler either had actual notice and knowledge and/or had constructive

notice, of SPTs ownership and registration of the SHARK TANK mark, as well as the SHARK TANK Logo, and trade dress, prior to Cellers adoption and use of SPTs SHARK TANK mark, Logo, and trade dress in promoting its Shark Tour; bbb. Whether Cellers use of Shark Tour, the SHARK TANK trademark, SHARK

TANK Logo and ABC logo, the Sharks, and the putative trade dress of Cellers promotional materials create a likelihood of confusion with SPTs SHARK TANK trademark, Logo, and trade dress; ccc. Whether Cellers promotional materials suggest to consumers that Cellers goods

and services are in some manner connected with, sponsored by, affiliated with, or related to SPT, SPTs business, and/or SPTs goods and services; ddd. Whether Cellers conduct in using SPTs SHARK TANK mark, Logo, and trade

dress was willful and intentional; eee. Whether Cellers intent to copy the SHARK TANK mark, Logo, and trade dress

creates a presumption of likelihood of confusion;

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fff.

Whether Cellers use of SPTs SHARK TANK mark, Logo, and trade dress, and

his additional and unauthorized use of ABCs trademark and logo, are likely to cause confusion or to deceive customers as to the affiliation, association or connection of Cellers Shark Tour with SPTs Shark Tank; and ggg. Whether Cellers use of SPTs SHARK TANK mark, Logo, and trade dress, unless

enjoined, threatens to dilute, blur, or tarnish the distinctive quality of SPTs SHARK TANK mark, Logo, and trade dress; hhh. Whether Shark Tour is a logical expansion of SPTs trademark rights given that

tour is frequently used by other entertainment properties and has been considered by SPT to describe live tours following on the heels of successful television and other entertainment shows (e.g. Idol Tour to describe the live tour promoting the valuable American Idol trademark and television show); iii. Whether Plaintiffs continued use of their proposed Shark Tour trademark and

other infringing trade dress threatens to confuse the public about the origin or source of the Shark Tour, dilute SPTs valuable intellectual property and should be enjoined to prevent irreparable harm; jjj. Whether SPT has proved and can recover any damages on any of the state or federal

Counterclaims; kkk. Whether SPT intentionally and without justification interfered with any of

Plaintiffs contracts relating to their proposed Shark Tour event; lll. Whether SPTs communications relating to Plaintiffs and their Shark Tour event

were at least in part privileged attempts to protect SPTs property and financial interests;

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mmm. Whether SPTs alleged conduct proximately caused any legally cognizable injury to Plaintiffs, or any of them; nnn. Whether Plaintiffs can prove any alleged damages to a reasonable certainty and, if

so, what damages can it prove; and ooo. Whether the Celler Parties acted in a manner in relation to SPTs intellectual

property that they should be barred from pursuing their tortious interference claim based on the doctrine of unclean hands.

6. a. b. c. d. e.

CONCISE STATEMENT OF ISSUES OF LAW ON WHICH THERE IS AGREEMENT Jurisdiction and venue are proper in this Court; Plaintiffs Tortious Interference claim is governed by Florida law; Defendants First, Second, and Third Counterclaims are governed by Federal law; Defendants Fourth, Fifth and Sixth Counterclaims are governed by Florida law; Trademarks are classified into four categories: (1) generic marks, which suggest the

basic nature of the product or service; (2) descriptive marks, which identify a characteristic or quality of the product or service; (3) suggestive marks, which suggest characteristics of the product or service and require an effort of the imagination by the consumer in order to be understood as descriptive; and (4) arbitrary or fanciful marks, which bear no relationship to the product or service and, thus, are the strongest category of trademarks. Gift of Learning Foundation, Inc. v. TGC, Inc., 329 F.3d 792, 798-99 (11th Cir. 2003); f. A trademark must be used in United States commerce to be within the purview of

the Lanham Act. 15 U.S.C. 1051(a)-(c), 1053;

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g.

A trademark must be registered to be enforceable under Section 32(1) of the

Lanham Act, 15 U.S.C. 1114(1); h. A trademark is famous if it is widely recognized by the general consuming public

of the United States as the designation of the source of the goods or services of the marks owner. 15 U.S.C. 1125(c)(2); i. Pursuant to 15 U.S.C. 1057(f), copies of any records, books, papers, or drawings

belonging to the United States Patent and Trademark Office relating to marks, and copies of registrations, when authenticated by the seal of the United States Patent and Trademark Office and certified by the Director, or in his name by an employee of the Office duly designated by the Director, shall be evidence in all cases wherein the originals would be evidence; j. A claim under 15 U.S.C. 1114 requires a USPTO registration of the mark that the

claimant is seeking to enforce; k. Pursuant to 15 U.S.C. 1127, the term mark includes any trademark, service

mark, collective mark, or certification mark; and l. Pursuant to 15 U.S.C. 1127, the term use in commerce means the bona fide use

of a mark in the ordinary course of trade, and not made merely to reserve a right in a mark, and a mark shall be deemed to be in use in commerce on services when it is used or displayed in the sale or advertising of services and the services are rendered in commerce, or the services are rendered in more than one State or in the United States and a foreign country and the person rendering the services is engaged in commerce in connection with the services.

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7.

CONCISE STATEMENT OF ISSUES OF LAW WHICH REMAIN FOR DETERMINATION BY THE COURT

Issues of law that SPT Believes Remain to be Determined by the Court ppp. A federal registration means that the trademark is at least descriptive with

secondary meaning; qqq. The challenger of a federally registered mark has the burden of proving by a

preponderance of the evidence that the trademark is invalid because it was descriptive but lacked secondary meaning before it began using its mark; rrr. A trademark must be used in United States commerce to be within the purview of

the Lanham Act. 15 U.S.C. 1051(a)-(c), 1053; sss. A trademark must be registered to be enforceable under Section 32(1) of the

Lanham Act, 15 U.S.C. 1114(1); ttt. A trademark that is not federally registered, including trade dress, is protectable

under 15 U.S.C. 1125(a); uuu. To prevail on a claim for likely dilution of a trademark under federal law, the

trademark owner must prove by a preponderance of the evidence that its trademark was famous at the time of the defendant's first use of its trademark. 15 U.S.C. 1125(c); vvv. A claimed trademark is famous if it is widely recognized by the general

consuming public of the United States as the designation of the source of the owner's goods or services. 15 U.S.C. 1125(c); www. Pursuant to 15 U.S.C. 1057(b), a certificate of registration of a mark upon the Principal Register is, at least, prima facie evidence, of the validity of the registered mark and of the registration of the mark, of the owners ownership of the mark, and of the owners exclusive right to use the registered mark in commerce on or in connection with the goods or services specified in Page 38 of 51

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the certificate, subject to any conditions or limitations stated in the certificate. The effective date of this presumption is the application's filing date. See Trademark Law Revision Act of 1988, Pub. L. 100-667, 128(b)(1), 102 Stat. 3944; xxx. Where a trademark is registered on the Principal Register, the public is deemed to

have knowledge of the registration and of the rights claimed in the registration, or constru ctive notice. As such, a challenging party cannot claim that it adopted its trademark without

knowledge of registered trademark. Nationwide constructive notice of rights dates back to the filing date of the application. 15 U.S.C. 1072 (2006); yyy. The rights of the owner of a registered trademark are not limited to protection with

respect to the specific goods and services stated on the certificate, but extend to any goods or services related in the minds of consumers in the sense that a single producer is likely to put out both goods and services. E. Remy Martin & Co., S.A. v. Shaw-Ross International Imports, Inc., 756 F.2d 1525, 1530 (11th Cir. 1985) (the rights of the owner of a registered trademark are not limited to protection with respect to the specific goods stated on the certificate -- for Remy Martin, cognac and brandy -- but extend to any goods related in the minds of consumers in the sense that a single producer is likely to put out both goods.); zzz. Pursuant to 15 U.S.C. 1057(f), copies of any records, books, papers, or drawings

belonging to the United States Patent and Trademark Office relating to marks, and copies of registrations, when authenticated by the seal of the United States Patent and Trademark Office and certified by the Director, or in his name by an employee of the Office duly designated by the Director, shall be evidence in all cases wherein the originals would be evidence; aaaa. Pursuant to 15 U.S.C. 1111, a registrant who has not given notice of registration by displaying with the mark the words "Registered in U.S. Patent and Trademark Office" or "Reg. Page 39 of 51

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U.S. Pat. & Tm. Off." or the letter R enclosed within a circle () may nonetheless obtain an injunction against infringing uses of its registered trademark; it can also recover profits and damages if the defendant had actual notice of the registration; bbbb. A claim under 15 U.S.C. 1114 requires a USPTO registration of the mark that the claimant is seeking to enforce; cccc. Pursuant to 15 U.S.C. 1125(a)(3), for trade dress not registered on the Principal Register, the person who asserts trade dress protection has the burden of proving that the matter sought to be protected is not functional; dddd. Pursuant to 15 U.S.C. 1127, the term mark includes any trademark, service mark, collective mark, or certification mark; eeee. Pursuant to 15 U.S.C. 1127, the term use in commerce means the bona fide use of a mark in the ordinary course of trade, and not made merely to reserve a right in a mark, and a mark shall be deemed to be in use in commerce on services when it is used or displayed in the sale or advertising of services and the services are rendered in commerce, or the services are rendered in more than one State or in the United States and a foreign country and the person rendering the services is engaged in commerce in connection with the services; ffff. Under Florida law, trademark infringement and unfair competition are unfair and

deceptive trade practices which violate Floridas Deceptive and Unfair Trade Practices Act PepsiCo, Inc. v. Distribuidora La Matagalpa, Inc., 510 F. Supp. 2d 1110, 1114 (S.D. Fla. 2007); gggg. Whether Plaintiffs can prove their Tortious Interference claim by a preponderance of the evidence; hhhh. Whether Plaintiffs can prove by a preponderance of the evidence that SPT intentionally interfered with Plaintiffs business/contractual relationships with the Sharks by Page 40 of 51

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inducing or otherwise causing the Sharks not to continue doing business with Celler and to terminate their written contacts with Celler; iiii. If Plaintiffs can prove, by a preponderance of the evidence, that SPT interfered with

Plaintiffs business/contractual relationships with the Sharks, whether, Plaintiffs can prove by a preponderance of the evidence that such interference was: (a) improper; (b) not justified; (c) intentional; and (d) the proximate cause of any damages incurred by Plaintiffs; jjjj. Whether Plaintiffs can prove the amount of their purported damages with a

reasonable certainty; kkkk. Whether Plaintiffs Tortious Interference claim is barred by the doctrine of unclean hands; llll. Whether each of The Celler Parties may be held liable on SPTs Counterclaims; Whether SPT can prove its Federal Trademark Infringement claim by a

mmmm.

preponderance of the evidence; nnnn. Whether SPT can prove its Federal False Designation of Origin and Unfair Competition claim by a preponderance of the evidence; oooo. Whether SPT can prove its Federal Trademark Dilution by a preponderance of the evidence; pppp. Whether SPT can prove its Florida Trademark Dilution claim by a preponderance of the evidence; qqqq. Whether the Florida anti-dilution statute, Fla. Stat. 495.151, applies to the use of a similar mark on similar goods; rrrr. Whether SPT can prove its Florida Unfair Competition claim under Floridas

Deceptive and Unfair Trade Practices Act by a preponderance of the evidence; Page 41 of 51

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ssss.

Whether a private right of action for damages under the Floridas Deceptive and

Unfair Trade Practices Act can be maintained regardless of whether the alleged unfair or deceptive acts or practices complained of involve a consumer transaction; tttt. Whether SPT can prove its Florida Common Law Infringement and Unfair

Competition claim by a preponderance of the evidence; uuuu. To the extent Celler is liable on SPTs Federal Trademark Infringement claim, whether SPT is entitled to permanent injunctive relief or damages; vvvv. To the extent Celler is liable on SPTs Federal False Designation of Origin and Unfair Competition claim, whether SPT is entitled to permanent injunctive relief or damages; wwww. To the extent Celler is liable on SPTs Federal Trademark Dilution claim,

whether SPT is entitled to permanent injunctive relief or damages; xxxx. To the extent Celler is liable on SPTs Florida Trademark Dilution claim, whether SPT is entitled to permanent injunctive relief or damages; yyyy. To the extent Celler is liable on SPTs Florida Unfair Competition claim under Floridas Deceptive and Unfair Trade Practices Act, whether Celler caused SPT to sustain actual damages; zzzz. To the extent Celler is liable on SPTs Common Law Infringement and Unfair Competition claim, whether SPT is entitled to permanent injunctive relief or damages; aaaaa. Whether this is an exceptional case under the Lanham Act, 15 U.S.C. 1117; and bbbbb. Whether the prevailing party on each of Defendants First, Second, Third, Fourth and Fifth Counterclaims is entitled to an award of attorneys fees, to be determined by the Court post-trial, pursuant to 15 U.S.C. 1117 and Fla. Stat. 501.2105 and 501.211, respectively.

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Issues of law that the Celler Parties Believe Remain to be Determined by the Court a. Whether Plaintiffs can prove their Tortious Interference claim by a preponderance

of the evidence; b. If Plaintiffs can prove, by a preponderance of the evidence, that SPT interfered with

Plaintiffs business/contractual relationships with the Sharks, whether, Defendants can prove by a preponderance of the evidence that such interference was: (a) proper; and (b) justified; c. Whether Plaintiffs can prove the amount of their purported damages with a

reasonable certainty; d. Whether Sony can prove by a preponderance of the evidence that Plaintiffs

Tortious Interference claim is barred by the doctrine of unclean hands; e. Whether Sony can prove by a preponderance of the evidence that it had a privilege

to interfere with Cellers contracts with the Shark celebrities; f. A trademark that is not federally registered, including trade dress, is protectable

under 15 U.S.C. 1125(a); g. Pursuant to 15 U.S.C. 1057(b), a certificate of registration of a mark upon the

Principal Register is prima facie evidence, of the validity of the registered mark and of the registration of the mark, of the owners ownership of the mark, and of the owners exclusive right to use the registered mark in commerce on or in connection with the goods or services specified in the certificate, subject to any conditions or limitations stated in the certificate. The effective date of this presumption is the application's filing date. See Trademark Law Revision Act of 1988, Pub. L. 100-667, 128(b)(1), 102 Stat. 3944;

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h.

To prevail on a claim for likely dilution of a trademark under federal law, the

trademark owner must prove by a preponderance of the evidence that its trademark was famous at the time of the defendant's first use of its trademark. 15 U.S.C. 1125(c); i. j. Whether each of The Celler Parties may be held liable on SPTs Counterclaims; Whether SPT can prove its Federal Trademark Infringement claim by a

preponderance of the evidence; h. Whether trade dress in a website is subject to protection under the Lanham Act

without a showing of secondary meaning among consumers; k. A federal registration means that the trademark is at least descriptive with

secondary meaning; l. The challenger of a federally registered mark has the burden of proving by a

preponderance of the evidence that the trademark is invalid because it was descriptive but lacked secondary meaning before it began using its mark; m. Pursuant to 15 U.S.C. 1062, upon the filing of an application for registration and

payment of the prescribed fee, the Director shall refer the application to the examiner in charge of the registration of marks, who shall cause an examination to be made and, if on such examination it shall appear that the applicant is entitled to registration, or would be entitled to registration upon the acceptance of the statement of use required by section 1051(d) of this title, the Director shall cause the mark to be published in the Official Gazette of the Patent and Trademark Office; n. Where a trademark is registered on the Principal Register, the public is deemed to

have knowledge of the registration and of the rights claimed in the registration, or constructive notice. As such, a challenging party cannot claim that it adopted its trademark without

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knowledge of registered trademark. Nationwide constructive notice of rights dates back to the filing date of the application. 15 U.S.C. 1072 (2006); o. The rights of the owner of a registered trademark are not limited to protection with

respect to the specific goods and services stated on the certificate, but extend to any goods or services related in the minds of consumers in the sense that a single producer is likely to put out both goods and services. E. Remy Martin & Co., S.A. v. Shaw-Ross International Imports, Inc., 756 F.2d 1525, 1530 (11th Cir. 1985) (the rights of the owner of a registered trademark are not limited to protection with respect to the specific goods stated on the certificate -- for Remy Martin, cognac and brandy -- but extend to any goods related in the minds of consumers in the sense that a single producer is likely to put out both goods.); p. Pursuant to 15 U.S.C. 1111, in any suit for infringement by a registrant who has

failed to give notice of registration by displaying with the mark the words "Registered in U.S. Patent and Trademark Office" or "Reg. U.S. Pat. & Tm. Off." or the letter R enclosed within a circle, thus , no profits and no damages shall be recovered under the provisions of this chapter unless the defendant had actual notice of the registration; q. Whether SPT can prove its Federal False Designation of Origin and Unfair

Competition claim by a preponderance of the evidence; r. Pursuant to 15 U.S.C. 1125(a)(3), for trade dress not registered on thePrincipal

Register, the person who asserts trade dress protection has the burden of proving that the matter sought to be protected is not functional; s. Pursuant to 15 U.S.C. 1125(c)(4)(B), in an action for trade dress dilution, where

the trade dress is not registered with the USPTO but incorporates a mark that is registered on the USPTOs Principal Register, the person who asserts trade dress protection has the burden of Page 45 of 51

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proving that, the unregistered matter, taken as a whole, is famous separate and apart from any fame of such registered marks. t. Under Section 43(c) of the Lanham Act, 15 U.S.C. 1125(c), any fair use, including

nominative or descriptive fair use, or facilitation of such fair use, of a famous mark by another person other than as a designation of source for the persons own goods or services, is not actionable as dilution by blurring or dilution by tarnishment; u. The Florida anti-dilution statute, Fla. Stat. 495.151, does not apply to the use of a

similar mark on similar goods. Monsanto Co. v. Campuzano, 206 F.Supp.2d 1270 (S.D. Fla. 2002); v. A private right of action for damages under the Floridas Deceptive and Unfair

Trade Practices Act cannot be maintained unless the alleged unfair or deceptive acts or practices complained of involves a consumer transaction. Hermosilla v. Octoscope Music, LLC, 2010 WL 5059559 *4 (S.D. Fla., Dec. 6, 2010); Monsanto Co. v. Campuzano, 206 F. Supp. 2d 1239, 1251 (S.D. Fla. 2002); w. evidence; x. Whether SPT can prove its Florida Trademark Dilution claim by a preponderance Whether SPT can prove its Federal Trademark Dilution by a preponderance of the

of the evidence; y. Whether the Florida anti-dilution statute, Fla. Stat. 495.151, applies to the use of a

similar mark on similar goods; z. Whether SPT can prove its Florida Unfair Competition claim under Floridas

Deceptive and Unfair Trade Practices Act by a preponderance of the evidence;

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aa.

Whether a private right of action for damages under the Floridas Deceptive and

Unfair Trade Practices Act can be maintained regardless of whether the alleged unfair or deceptive acts or practices complained of involve a consumer transaction; bb. Whether SPT can prove its Florida Common Law Infringement and Unfair

Competition claim by a preponderance of the evidence; cc. To the extent Celler is liable on SPTs Federal Trademark Infringement claim,

whether SPT is entitled to permanent injunctive relief or damages; dd. To the extent Celler is liable on SPTs Federal False Designation of Origin and

Unfair Competition claim, whether SPT is entitled to permanent injunctive relief or damages; ee. To the extent Celler is liable on SPTs Federal Trademark Dilution claim, whether

SPT is entitled to permanent injunctive relief or damages; ff. To the extent Celler is liable on SPTs Florida Trademark Dilution claim, whether

SPT is entitled to permanent injunctive relief or damages; gg. To the extent Celler is liable on SPTs Florida Unfair Competition claim under

Floridas Deceptive and Unfair Trade Practices Act, whether Celler caused SPT to sustain actual damages; hh. To the extent Celler is liable on SPTs Common Law Infringement and Unfair

Competition claim, whether SPT is entitled to permanent injunctive relief or damages; ii. jj. Whether this is an exceptional case under the Lanham Act, 15 U.S.C. 1117; and Whether the prevailing party on each of Defendants First, Second, Third, Fourth

and Fifth Counterclaims is entitled to an award of attorneys fees, to be determined by the Court post-trial, pursuant to 15 U.S.C. 1117 and Fla. Stat. 501.2105 and 501.211, respectively;

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kk.

Whether SPTs Counterclaim is properly pled under the Federal Rules of Civil

Procedure; and ll. granted. 8. TRIAL EXHIBITS Whether SPTs Counterclaim fails to state a claim upon which relief may be

Defendants Trial Exhibit List, with Plaintiffs objections, is attached hereto as Composite Exhibit A. Plaintiffs Trial Exhibit List, with Defendants objections, is attached hereto as Composite Exhibit B. 9. TRIAL WITNESSES

Plaintiffs Trial Witness List is attached hereto as Exhibit C. Defendants Trial Witness List is attached hereto as Exhibit D. 10. ESTIMATED TIME FOR TRIAL

The Parties estimate 4-5 days for trial. 11. ATTORNEYS FEES

Attorneys fees are not recoverable on Plaintiffs Tortious Interference claim. With respect to Defendants Trademark Infringement (First Counterclaim), False Designation of Unknown Origin and Unfair Competition Under Federal Law (Second Counterclaim), and Trademark Dilution Under Federal Law (Third Counterclaim) claims, the Court may award reasonable attorneys fees to the prevailing party in exceptional cases pursuant to 15 U.S.C. 1117. Similarly, with respect to Defendants Dilution Under State Law claim (Fourth

Counterclaim), the Court may award reasonable attorneys fee to the prevailing party according to the circumstances of the case. Further, with respect to Defendants Unfair Competition Under State Law claim (Fifth Counterclaim), the Court may award reasonable attorneys fees to the Page 48 of 51

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prevailing party pursuant to Fla. Stat. 495.141 and 501.2105/501.211. The parties will brief the issue of entitlement to attorneys fees for the Court post-trial. Dated: April 7, 2014

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Respectfully submitted, BUCHANAN INGERSOLL & ROONEY, P.C./ FOWLER WHITE BOGGS, P.A. Attorneys for Plaintiffs/Counter-Defendants 1200 E. Las Olas Blvd., Suite 500 Fort Lauderdale, Florida 33301 Tel: (954) 703-3900 Fax: (954) 270-3939 /s/ Jesse H. Diner JESSE H. DINER Florida Bar No. E-mail: jesse.diner@fowlerwhite.com KIMBERLY GESSNER Florida Bar No. JOSE FLOREZ Email: kimberly.gessner@fowlerwhite.com Email: jose.florez@fowlerwhite.com FELDMAN GALE, P.A. James Anthony Gale Susan Joy Latham One Biscayne Tower 2 South Biscayne Blvd., 30th Floor Miami, FL 33131-2148 Telephone: (305) 358-5001 Facsimile: (305) 358-3309 Email: jgale@feldmangale.com Email: slatham@feldmangale.com GREENBERG TRAURIG, P.A. Attorneys for Defendant/Counter-Claimant 401 East Las Olas Boulevard Fort Lauderdale, FL 33301 Telephone: (954) 765-0500 Facsimile: (954) 765-1477 /s/ Glenn E. Goldstein GLENN E. GOLDSTEIN Florida Bar No. 435260 E-mail: goldsteing@gtlaw.com KRISTINA L. CIAFFI Florida Bar No. 0040596 E-mail: ciaffik@gtlaw.com IAN M. ROSS Florida Bar No. 091214 E-mail: rossi@gtlaw.com 333 Avenue of the Americas Miami, FL 33131 Telephone: (305) 579-0500 Facsimile: (305) 579-0717 JEFF E. SCOTT (admitted pro hac vice) E-mail: scottj@gtlaw.com 1840 Century Park East Suite 1900 Los Angeles, CA 90067 Telephone: (310) 586-7700 Facsimile: (310) 586-7800

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Case 0:13-cv-61678-JIC Document 71 Entered on FLSD Docket 04/07/2014 Page 51 of 51 CASE NO. 1:13-CV-61678-COHN-SELTZER CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 7th day of April, 2014, I electronically filed the foregoing document with the Clerk of Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing.

/s/ Ian M. Ross IAN M. ROSS

SERVICE LIST Jesse H. Diner, Esq. Kimberly Gessner FOWLER WHITE BOGGS, P.A. 1200 E. Las Olas Blvd., Suite 500 Fort Lauderdale, Florida 33301 Tel: (954) 703-3900 Fax: (954) 270-3939 Email: jesse.diner@fowlerwhite.com Email: slatham@feldmangale.com James Anthony Gale Susan Joy Latham FELDMAN GALE, P.A. One Biscayne Tower 2 South Biscayne Blvd., 30th Floor Miami, FL 33131-2148 Telephone: (305) 358-5001 Facsimile: (305) 358-3309 Email: jgale@feldmangale.com Email: slatham@feldmangale.com

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