Contract analysis

I. Executive Summary The purpose of this memorandum is to identify the three remaining open issues in the Trademark Coexistence Agreement negotiation between our client, Meridian Consumer Brands LLC ("MCB"), and Brindoval Home Goods Inc. ("Brindoval"), and to recommend MCB's positions and fallback compromises on each issue for discussion by the deal team before we transmit a revised draft to opposing counsel. By way

II. Background and Procedural Posture A brief recitation of the relevant background and procedural posture is provided below for context. MCB opened this matter on September 26, 2022, when it transmitted a cease-and-desist letter to Brindoval demanding that Brindoval immediately cease all use of the mark "MERIDIAN FRESH" in connection with household cleaning products. The letter identified MCB's longstanding federal

III. Open Issue No. 1: Escrow Mechanics and Release Trigger A. Description of the Issue The parties have agreed that the $1,350,000 one-time lump-sum settlement payment will be made by Brindoval to MCB and that the funds will be held in escrow pending satisfaction of specified release conditions. Both parties have agreed to use Dralvecen National Bank as escrow agent, with Patricia Dolan, Escrow Officer (located at 6

IV. Open Issue No. 2: Scope of Brindoval's Amendment to Pending Trademark Application Serial No. 97/412,558 A. Description of the Issue The draft Coexistence Agreement requires Brindoval to amend its pending trademark application, Serial No. 97/412,558 (filed May 12, 2022, for the standard-character mark MERIDIAN FRESH in International Class 3, published for opposition on September 6, 2022), to reflect the modified m

V. Open Issue No. 3: Commencement Date for 120-Day Rebranding Deadline A. Description of the Issue The draft Coexistence Agreement requires Brindoval to complete its rebranding from "MERIDIAN FRESH" to "BRINDOVAL MERIDIAN FRESH" — including the adoption of new trade dress that does not incorporate the teal-and-white color scheme or the wave device — within 120 days. The parties agree on the 120-day duration but disag

VI. Summary of Recommended Positions and Fallback Compromises The following table summarizes MCB's recommended positions, Brindoval's positions, and the recommended fallback compromises on each of the three remaining open issues:

VII. Recommended Next Steps Based on the foregoing analysis, I recommend the following next steps:

1. Internal Strategy Discussion. Schedule a call with Alan Ngo and Marcus Delgado at the earliest opportunity to discuss the recommended positions and fallback compromises set forth in this memorandum before we respond to Halverson McKay & Pruitt LLP. I am available at any time this week or early next week.

2. Revised Draft Preparation. Following the internal strategy discussion, prepare revised draft sections of the Coexistence Agreement addressing the three open issues, for transmission to Halverson McKay & Pruitt LLP by approximately April 24, 2023. The revised draft should reflect MCB's primary positions, with bracketed alternative language reflecting the fallback compromises where appropriate, to facilitate discuss

3. Client Authorization. Coordinate with Thomas R. Hennessy, General Counsel of MCB, to confirm client authorization for the recommended positions and fallback compromises outlined in this memorandum. With respect to the rebranding timeline issue (Open Issue No. 3), it may be advisable to loop in Rachel Dominguez (VP, Brand Management) given the operational implications of the rebranding deadline for MCB's own market

4. USPTO Procedural Research. Peter Vassiliev should confirm current USPTO practice on two specific questions: (a) the acceptability of channel-of-trade limitations in identifications of goods under TMEP § 1402.03(c), with recent examples of accepted identifications; and (b) the material-alteration standard applicable to amendments adding a house mark prefix under TMEP § 807.13 and 37 C.F.R. § 2.72, including any rec

5. Escrow Agent Coordination. Contact Patricia Dolan at Dralvecen National Bank (60 East 42nd Street, New York, NY 10165) to confirm that the bank's escrow agreement form can accommodate the release mechanics described in this memorandum (including the dual-document release instruction procedure and the contingency provision for delayed entry of the dismissal order). If the standard form requires modification, we sho

6. Target Dates. Our target timeline for closing is as follows: • Revised draft to Halverson McKay & Pruitt: on or about April 24, 2023 • Final negotiations and agreement on all terms: by end of April 2023 • Execution of Coexistence Agreement, Escrow Agreement, and related closing documents: by mid-May 2023 • Deposit of settlement funds into escrow: within 10 business days of execution (i.e., by early June 2023) • Fi

VIII. Privilege and Confidentiality Notice This memorandum is a privileged and confidential attorney work product prepared by Calderwood & Harkness LLP in connection with the representation of Meridian Consumer Brands LLC in the matter captioned Meridian Consumer Brands LLC v. Brindoval Home Goods Inc., S.D.N.Y. Case No. 1:22-cv-09483 and TTAB Opposition No. 91/278,415 (Matter No. 1011-00003). This memorandum is prot

1. Escrow Release Trigger | Release upon entry of Court's Order of Dismissal with Prejudice; TTAB withdrawal to be filed simultaneously or prior to filing of Joint Stipulation of Dismissal | Release upon both (a) entry of dismissal order and (b) MCB's withdrawal of TTAB opposition | Accept dual trigger, but second condition satisfied upon filing (not processing or acceptance) of withdrawal of opposition; if TTAB proc

2. Scope of Application Amendment (Ser. No. 97/412,558) | Amend mark to BRINDOVAL MERIDIAN FRESH and include channel-of-trade limitation in identification of goods; if USPTO refuses amendment as material alteration, Brindoval must abandon and refile at own expense within 60 days | Amend mark to BRINDOVAL MERIDIAN FRESH only; no channel limitation in identification of goods | Accept mark amendment without channel limi