Free Motion for Order to Show Cause - District Court of Arizona - Arizona

Exhibit 6 l
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Case 2:O2—cv—O1815-JAT Document 102-7 Filed O1/18/2007 Page1 of 4_ `

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V BESHEARS WALLWORK BELLAMY
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rnc¤¤rxAzasoo¢—1rss M 15 2005 _-
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wwm¤w.c¤m Thorpe, Nom & Wm,[email protected] j
Mr. Peter M. de Jonge
Thorpe North & Westem, LLP · Q
8180 S. 700 East. Suite 200 ‘ ‘ ¤— ;
Sandy, Utah 84070
Matter: Rhino Sports, Inc. ta Sport Court Inc. »
Re: Response Regarding Tampa Bay Rhino Courts and Notice ot Alleged Infringement of SPORT
COURT? and Notice of Alleged Infringement of LATERAL FORGIVENESSP
Dear Peter:
Your May t8, 2005 letter demonstrates that Sport Court, Inc. not only continues to Ignore Rhino Sports, lnc.'s
good·falth compliance with the parties' settlernent agreement. but also continues to violate the agreements
oonIIdentiaIity·tequirements.· In committing these violations, Sport Court, Inc. continues to Interferewith Rhino’s
business relationships. J . _ · ··
Rhino Sports reserves its right to take action to enforce the settlement agreement, unless Sport Court. Inc.
ceases its unauthorized contacts and violations ofthe conttdenttality provisions ot the settlement agreement.
Nonetheless, in an effort to resolve these continuing disputes relating to the parties' settlement agreement. I
will address each ofthe specltlc points discussed In the previous correspondence.
1. Violations of Conlidentlallty Provisions . ·
Sport Court, Inc. had no right to reveal the terms of the Settlement Agreement to Amy Kriegbaum in its August ·
20, 2004 letter to Rhino. Paragraph 5 of the agreement allowed the parties only to "tntorm each of their g
respective distributors that Rhino Sports and Shatter have agreed to cease use of the SPORT COURT I
trademarksf However, Sport Court, lnc.'s August 20, 2004 letter went far beyond this narrow authorization,
and disregarded the clearly applicable oonticlentlaltty provisions ot Paragraph 4. If Sport Court, Inc. persists in
this pattern of violating the agreement and otherwise improperly interfering with RhIno’s current and
prospective business relationships, Rhino will be forced to take whatever legal action we deem appropriate. l
including seeltlng judicial relief and damages for Sport Court, lnc.'s Intentional misconduct Q
2. Tampa Bay Rhino Courts u `
I attach acopy of the letter set to Tampa Bay Rhino Courts on May 27, *2005. This letter should fully resolve
thematter. " ‘ ` ·· . -
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Case 2:02-cv—01815—JAT Document 102-7 Filed O1/18/2007 Page 2 of 4 ‘

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Mr. Peter M. de Jonge .
July 15, 2005 gig?)
Page 2
3. Yahco·Sponsored Unk
With respect to the Yahoo-sponsored link, the phrase “multl-sport court oonstmction' is not confuslnglyslmilar
to the SPORT COURT° mark. As the printout you attached to your letter demonstrates, this phrase was
included in a sponsored tink triggered by the search phrase "court constructlon." Consistent with this fact, the
phrase “multl-sport court construction" logically should be read as consisting of two distinct parts: ‘multi—sport"
and "court construction} and the commercial impression of this phrase ls considerably different from "SPORT
COURT." Nonetheless, Rhino has removed this sponsored link and does not intend to use the phrase 'muItl— ·
sport court construction" on any such sponsored links in the future. This action should fully resolve this matter. 2
4. Yellow Pages ` - `
Vlhlh respect to the Scottsdale/Paradise Valley Qwest directory and online directory, Rhlno contacted its ·
Yellow Pages representative last spring and asked that all of its Yellow Pages advertisements be removed. ·
inexplicably, these orders were carried out for all directories except tor Scottsdale/Paradise Valley and
Dexonline.com. Rhlno has since specifically ordered that these advertisements be discontinued, as well, and ·
has been infomted that as of September, when the new Scottsdale/Paradise Valley directories are printed. the
advertisements will no longer appear. Rhlno has also specifically asked that the online version be discontinued
immediately. but was informed that that is not possible. ‘
ln addition to Rhlno’s good—faith efforts to remove all such yellow pages advertising. Rhtno's inadvertent use of
the phrase “Multi Sports Courts" on its print and yellow pages advertisements does not violate the permanent `
injunction. The commercial impression of these advertisements is signlricantly different from the uses of "muItl- = ‘
sport court" at issue in the preliminary injunction hearing as well as from SPORT COURT°. Therefore. the use
of "multi-sport court" in the yellow pages context is pemrlsslble under the injunction. Nonetheless, as stated
above, Rhlno is discontinuing all such yellow pages advertising. ‘
Furthermore, no basis exists for Sport Court, Inc.'s claim of $20,000 in damages. Rhino has not identified any I
sales leeds from either the Scottsdale/Paradise Valley yellow pa es or a Yahoo-sponsored link in the past
year. lf you have any evidence of actual damages, then please forward that information to me for Rhin0’s _
consideration. Othehyrlse,weconslder this mattecfullyreeolved.
5. Sports Courts 'N Putting Greens · -
Rhlno has inspected the Yellow Pages advertisement attached to your letter for the advertisement of Sports
courts ‘N Putting Greens. Once again, Sport Court, Inc. has erroneously assumed that someone ls a Rhino
dealer when that business has nothing whatever to do with Rhlno. Likewise, Sport And Game & Fun Courts.
which apparently ls the same business, is wholly unrelated to Rhino. Again, Sport Court, lnc. must cease its
harassment of Rhino with these sorts ol unsupported and erroneous-even reckless-accusations, which
seriously call into question the good faith of Sport Court, Inc.'s intentions in entering the parties' settlement ln
the first instance.
Case 2:02-cv—01815—JAT Document 102-7 Filed O1/18/2007 Page 3 of 4

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Mr. Peter M. dedonge in ` "
Jury 15,2005 Et (EE i
Page3 .
6. Lateral and VerficalForglveness - J .
Sport Court, Inc. has a registration for LATERAL FORGiVENESS° and not for the phrase ln question, 'lateral r
and vertical forgiveness} Moreover, Rhino is not using the phrase “latereI and vertlcal forgiveness" as an
indication ofthe source or sponsorship of any product, but rather solely in a descriptive manner recognized as
entirely appropriate under the Lanham Act. See, e.g., Zataralns, Inc. v. Oak Grove Smckehouse, Inc., 698
F.2d 786 (5th Cir. 1983). The registration of the descriptive phrase “lateraI_forglveness' cannot prevent others
from using this phrase, or similar phrases, ln a purely descriptive fashloni . — I ’
ln fact, LATERAL FORGlVENESS° is a quality, characteristic, and feahrre of your floor tiles, and consequently .. h ·
' · was not appropriately presented or accepted for registration. TMEP·§1209t01(b) sxprarnsrrnar descriptive‘t‘*¤*"‘r¥ ·
marks should be denied registration:
A mark is considered merely descriptive it it describes an ingredient, quality, characteristic, I
function, feature, purpose or use of the specified goods or services. See In re Gyulay, 820 - ‘ ’
_ F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987) (APPLE PIE held merely descriptive of .
polpourri); In re Bad & Breakfast RGQNT}'. 791 F.2d 157, 229 USPQ 818 (Fed. Cir. t986) (
(BED & BREAKFAST REGISTRY held merely descriptive of lodging reservations
services); ln re MetPath Inc., 223 USPQ 88 (Tl‘AB 1984) (MALE-PAP. TEST held merely
descriptive of clinical pathological immunoassay testing services tor detecting and =
monitoring prostatic cancer); In re Bright-Crest Ltd, 204 USPQ 591 (TT AB 1979) `
(COASTER-CARDS held merely descriptive of a coaster suitable for direct mailing).
A ln any event, RhIno’s use of the phrase 'lateral and vertical forgiveness" in advertising copy does not violate
the Lanham Act or otherwise infringe on any rights of Sport Court, Inc. Although this phrase does not cause ·
any confusion, lt Sport Court, Inc. has evidence to show otherwise, Rhino would be willing to discuss the
matter further. Othenrrlse, we consider this matter fully resolved.
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As demonstrated by Rhino‘s specific actions as described ln this letter, Rhino takes Its obligations under the
parties' settlement agreement very seriously. Rhino has taken extensive measures to stop any and all uses of _
'the phrase »"sport court" by Rhlno‘sdaalers.nationwlde, and. Rhino continues to monitor its dealers on a regular · ·
basis. I assume that the above actions fully resolve Sport Court, lnc.'s oonoems, and again reherate that Sport
Court, Inc. must stop its pattem of violating the agreements confidentiality provisions or otherwise lnierferlng
in Rhino's business relationships. lt my assumption ls incorrect, dren please call me to discuss the matter.
Vw truly vows]
J Fredric D. Bellamy
r=0e;aen
Enclosures: As stated.
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