1011-00003 · Waypoint Capital Partners · Litigation/Discovery

first-set-rfps-defendant.docx DOCUMENT Litigation

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

PLAINTIFF MERIDIAN CONSUMER BRANDS LLC'S FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS TO DEFENDANT BRINDOVAL HOME GOODS INC. (Nos. 1–30)

Date Served: January 30, 2023

Propounding Party:

Calderwood & Harkness LLP 1251 Avenue of the Americas, 40th Floor New York, NY 10020 Attorneys for Plaintiff Meridian Consumer Brands LLC

Directed To:

Brindoval Home Goods Inc. Through its counsel of record: Gregory T. Halverson Halverson McKay & Pruitt LLP 225 South Sixth Street, Suite 4200 Minneapolis, MN 55402

I. PRELIMINARY STATEMENT

Plaintiff Meridian Consumer Brands LLC ("MCB"), by and through its attorneys Calderwood & Harkness LLP, hereby propounds this First Set of Requests for Production of Documents (Nos. 1–30) upon Defendant Brindoval Home Goods Inc. ("Brindoval") and requests that Brindoval produce the documents and things described below in accordance with Rules 26 and 34 of the Federal Rules of Civil Procedure and the Local Civil Rules of the Southern District of New York. Brindoval is requested to produce all responsive documents within thirty (30) days of service of these Requests, or at such other time as agreed upon by the parties or ordered by the Court.

This action arises from MCB's Complaint filed on November 7, 2022, asserting claims against Brindoval for federal trademark infringement under Section 32(1) of the Lanham Act, 15 U.S.C. § 1114(1); false designation of origin under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a); and trademark dilution under New York General Business Law § 360-l. MCB's claims arise from Brindoval's unauthorized adoption, use, and promotion of the mark MERIDIAN FRESH and confusingly similar trade dress in connection with a line of household cleaning products that compete directly with MCB's well-established and federally registered MERIDIAN-branded cleaning products.

MCB is the owner of the following federally registered trademarks, each of which is valid, subsisting, and incontestable:

(a) U.S. Registration No. 4,218,506 for the mark MERIDIAN in International Class 3, covering household cleaning products;

(b) U.S. Registration No. 5,034,771 for the mark MERIDIAN CLEAN in International Class 3, covering household cleaning products; and

(c) U.S. Registration No. 5,589,320 for the MERIDIAN stylized logo with wave device in International Class 3, covering household cleaning products.

Brindoval's accused conduct centers on its adoption and use of the mark MERIDIAN FRESH, which is the subject of pending U.S. trademark application Serial No. 97/412,558 in International Class 3, filed May 12, 2022, and published for opposition on September 6, 2022. The MERIDIAN FRESH mark is used in connection with household cleaning products, including all-purpose spray, glass cleaner, disinfecting wipes, and dish soap, which are sold through Brindoval's retail locations and e-commerce platform.

The documents requested herein are relevant to the claims and defenses in this action, including, without limitation, the likelihood of confusion between the parties' marks, Brindoval's intent in adopting the MERIDIAN FRESH mark, actual consumer confusion, the scope of Brindoval's use and promotion of the accused marks, Brindoval's revenues and profits attributable to the accused products, and MCB's entitlement to injunctive relief, damages, and an accounting of Brindoval's profits.

II. DEFINITIONS

As used in these Requests for Production, the following terms shall have the meanings set forth below. These definitions are to be read in addition to, and not in derogation of, the definitions contained in the Federal Rules of Civil Procedure:

1. "You," "Your," "Defendant," or "Brindoval" means Brindoval Home Goods Inc., a Delaware corporation with its principal place of business in Minneapolis, Minnesota, including its present and former officers, directors, employees, agents, representatives, subsidiaries, affiliates, predecessors, and successors in interest, and any person or entity acting on its behalf or subject to its control, including but not limited to Douglas P. Lindstrom (Chief Executive Officer), Karen A. Whitfield (General Counsel), and Nathan Cho (Vice President, Private Label Development).

2. "MCB" or "Plaintiff" means Meridian Consumer Brands LLC, a Delaware limited liability company with its principal place of business in New York, New York, including its officers, managers, employees, agents, and representatives.

3. "Document" or "Documents" shall have the broadest meaning permitted under Rule 34(a) of the Federal Rules of Civil Procedure and shall include, without limitation, all writings, recordings, and electronically stored information ("ESI") of every kind and description, whether printed, handwritten, typed, recorded, filmed, or stored electronically or magnetically, including but not limited to: correspondence, emails, text messages, instant messages (including messages sent via Meridian Solutions, Northgate Data Systems, or any other collaboration platform), memoranda, reports, presentations, spreadsheets, databases, calendars, datebooks, appointment records, photographs, videos, audio recordings, charts, graphs, maps, drawings, contracts, agreements, purchase orders, invoices, receipts, shipping records, accounting records, financial statements, corporate minutes, board resolutions, organizational charts, policy manuals, notes, diaries, drafts (whether or not superseded), final versions, and any other tangible or electronic thing from which information can be obtained. The term "Document" includes both originals and all non-identical copies, including copies bearing annotations, markings, highlighting, or other modifications.

4. "Communication" or "Communications" means every manner or means of transmitting, exchanging, or conveying information between or among two or more persons, whether oral, written, or electronic, including but not limited to: face-to-face meetings, telephone calls, video conferences, emails, letters, facsimile transmissions, text messages, instant messages, social media messages, voicemail messages, and any other form of information exchange, regardless of the medium or technology used.

5. "MERIDIAN FRESH Products" means all household cleaning products, including but not limited to all-purpose spray, glass cleaner, disinfecting wipes, and dish soap, that have been or are being manufactured, marketed, sold, offered for sale, distributed, or promoted by Brindoval or on Brindoval's behalf under or in connection with the mark MERIDIAN FRESH or any variation thereof.

6. "Accused Marks" means the mark MERIDIAN FRESH in standard character form, and any trade dress associated therewith, including but not limited to the teal-and-white color scheme, the stylized wave device, and any other design elements, logos, or visual identifiers used on MERIDIAN FRESH product packaging, labels, advertising materials, or promotional displays.

7. "Relevant Period" means the period from January 1, 2020 through the date of production of documents responsive to these Requests, unless a different time period is specified in a particular Request.

8. "Identify" means: (a) with respect to a natural person, to state the person's full name, present or last known title or position, employer, business address, telephone number, and email address; (b) with respect to an entity, to state the entity's full legal name, form of organization, state of incorporation or formation, principal place of business, and the identity of the person most knowledgeable about the subject matter at issue; and (c) with respect to a Document, to state the type of Document (e.g., letter, email, memorandum), the date of the Document, the author or sender, all recipients (including "cc" and "bcc" recipients, if applicable), the subject matter, the Bates number range (if already produced), and the present custodian or location of the Document.

9. "Person" means any natural person, corporation, limited liability company, partnership, joint venture, association, trust, governmental entity, or any other legal entity or unincorporated organization.

10. "Relating to" or "Concerning" means referring to, describing, evidencing, constituting, reflecting, mentioning, discussing, analyzing, summarizing, supporting, contradicting, or having any logical connection to the subject matter referenced in the applicable Request. These terms shall be construed broadly to effectuate the full scope of discovery permitted under the Federal Rules of Civil Procedure.

III. INSTRUCTIONS

The following instructions apply to each Request for Production set forth below:

1. Time Period. Unless otherwise specified in a particular Request, these Requests cover the Relevant Period from January 1, 2020 through the date of production.

2. Scope of Production. Brindoval shall produce all responsive Documents in its possession, custody, or control, regardless of the physical location of such Documents. The phrase "possession, custody, or control" shall be construed broadly and includes Documents held by Brindoval's officers, directors, employees, agents, attorneys (to the extent not protected by a valid claim of privilege), consultants, accountants, auditors, contractors, and any other person or entity acting on Brindoval's behalf or subject to Brindoval's direction, as well as Documents that Brindoval has the legal right, authority, or practical ability to obtain upon demand.

3. Format of Production. Documents shall be produced in their native electronic format or as searchable image files (TIFF or PDF) with associated metadata intact and Bates-numbered load files, in accordance with the parties' ESI protocol dated December 19, 2022, or any applicable order of the Court. Native files shall be produced for spreadsheets, databases, and other documents for which native format is necessary to preserve functionality. Emails shall be produced with all attachments and metadata fields, including sender, recipient, date, time, subject line, and custodian information. Hard-copy documents shall be scanned to searchable PDF or TIFF format with Optical Character Recognition (OCR) applied, and produced with Bates numbers.

4. Privilege Log. If any Document responsive to these Requests is withheld in whole or in part, or redacted, on the basis of any claim of privilege, including attorney-client privilege, work-product doctrine, or any other applicable privilege or immunity, Brindoval shall provide a privilege log in accordance with Rule 26(b)(5) of the Federal Rules of Civil Procedure and Local Civil Rule 26.2 of the Southern District of New York. The privilege log shall identify, for each withheld or redacted Document: (a) the type of Document; (b) the date of the Document; (c) the author or sender; (d) all recipients (including "cc" and "bcc" recipients); (e) a description of the subject matter of the Document in sufficient detail to enable MCB to assess the validity of the privilege claim without revealing the privileged content; and (f) the specific privilege(s) or protection(s) asserted.

5. Organization of Production. Documents shall be produced either (a) as they are kept in the ordinary course of business, including identification of the custodian from whose files the documents were collected, or (b) organized and labeled to correspond to the categories in each numbered Request.

6. Continuing Obligation to Supplement. These Requests impose a continuing obligation to supplement Brindoval's production pursuant to Rule 26(e) of the Federal Rules of Civil Procedure. If, after making its initial production, Brindoval becomes aware of additional responsive Documents, Brindoval shall promptly produce such Documents and notify MCB's counsel in writing.

7. Objections. If Brindoval objects to any Request, in whole or in part, Brindoval shall state the specific grounds for the objection with particularity and, notwithstanding the objection, shall produce all responsive Documents as to which no objection is asserted, or as to which the objection does not apply. No general, boilerplate, or non-specific objection shall be deemed to excuse a complete failure to respond to any Request or to produce any Documents.

8. Construction. The use of the singular form of any word includes the plural, and vice versa. The use of the masculine, feminine, or neuter gender includes all genders. The connectives "and" and "or" shall be construed either disjunctively or conjunctively as necessary to bring within the scope of each Request all responses that might otherwise be construed to be outside its scope. The use of "including" or "include" means "including but not limited to."

IV. REQUESTS FOR PRODUCTION

REQUEST NO. 1

Adoption and Selection of the MERIDIAN FRESH Mark

All Documents relating to the conception, creation, selection, evaluation, clearance, or adoption of the mark MERIDIAN FRESH for use on household cleaning products or any other goods, including but not limited to: brainstorming notes; naming proposals; brand name candidate lists; naming evaluation criteria and scoring matrices; branding strategy presentations; creative briefs; meeting agendas and meeting minutes; emails; memoranda; instant messages; presentations; and any other Documents reflecting the process by which the MERIDIAN FRESH name was proposed, considered, evaluated, or ultimately selected. This Request encompasses Documents involving Nathan Cho, Vice President of Private Label Development, or any other person involved in the naming process, including personnel from Brindoval's marketing, product development, legal, and executive leadership teams, as well as any third-party branding agencies or consultants retained by Brindoval in connection with the naming process.

REQUEST NO. 2

Trademark Clearance Searches and Opinions

All trademark search reports, clearance opinions, freedom-to-use opinions, risk assessments, infringement analyses, or any other Documents prepared by or for Brindoval (including by Halverson McKay & Pruitt LLP, or any other law firm, trademark search vendor, or consultant) relating to the availability of the mark MERIDIAN FRESH, or any mark incorporating the word "MERIDIAN," for use on household cleaning products or any goods in International Class 3 or related classes, to the extent not protected by a valid claim of attorney-client privilege or work-product doctrine. This Request includes, without limitation, search results from the United States Patent and Trademark Office's Trademark Electronic Search System (TESS), state trademark databases, common law databases, domain name registries, and any commercial trademark search services (e.g., Pinnacle Data Systems, Marlowe Data Systems, Pemberton & Co.). If any Document responsive to this Request is withheld on the basis of privilege, Brindoval shall identify such Document on a privilege log as described in Instruction No. 4 above.

REQUEST NO. 3

Awareness of MCB's MERIDIAN Marks

All Documents reflecting or relating to Brindoval's knowledge of, awareness of, or familiarity with MCB's MERIDIAN, MERIDIAN CLEAN, or MERIDIAN stylized logo with wave device marks (U.S. Registration Nos. 4,218,506, 5,034,771, and 5,589,320), including but not limited to: any Documents referencing MCB or its products reviewed, received, or created before or during the development of the MERIDIAN FRESH product line; communications in which MCB's marks or products were mentioned or discussed; competitive intelligence reports that identified or analyzed MCB's brands; retail shelf surveys, planograms, or store audits in which MCB's products appeared; trade publication articles mentioning MCB; and any Documents in Brindoval's files that contain or reproduce images of MCB's product packaging, advertising materials, or trademarks.

REQUEST NO. 4

Trademark Application Documents

All Documents relating to the preparation, filing, and prosecution of U.S. trademark application Serial No. 97/412,558 for MERIDIAN FRESH in International Class 3, filed May 12, 2022, and published for opposition on September 6, 2022, including but not limited to: the application as filed; specimens of use submitted with the application or in response to any Office Action; all communications with the United States Patent and Trademark Office, including Office Actions issued and responses filed; declarations or affidavits submitted in support of the application; amendments to the application; communications with counsel regarding the preparation, filing, or prosecution of the application; and any Documents reflecting the decision to file the application or the selection of the goods and services identified therein. Documents withheld on the basis of attorney-client privilege or work-product doctrine shall be identified on a privilege log as described in Instruction No. 4 above.

REQUEST NO. 5

Internal Branding and Naming Communications

All internal Communications (including emails, instant messages, memoranda, presentations, and meeting notes) among Brindoval employees, officers, or directors relating to the naming, branding, positioning, launch strategy, or marketing strategy of the MERIDIAN FRESH product line, including but not limited to Communications involving Douglas P. Lindstrom (CEO), Karen A. Whitfield (General Counsel), Nathan Cho (VP, Private Label Development), and any member of Brindoval's marketing department, legal department, product development team, or any other internal stakeholder involved in the MERIDIAN FRESH initiative. This Request includes Communications on any platform or medium, including email, Meridian Solutions, Northgate Data Systems, or any other messaging or collaboration platform used by Brindoval.

REQUEST NO. 6

Packaging Design and Trade Dress Development

All Documents relating to the design, development, selection, revision, or approval of the packaging and trade dress for MERIDIAN FRESH Products, including but not limited to: design mockups, comps, and prototypes; color palettes and Pantone color specifications; logo concepts and iterations; typography selections; the development and selection of the teal-and-white color scheme; the creation and development of the stylized wave device; artwork files (including Adobe Illustrator, Photoshop, InDesign, or other design software files); communications with graphic designers, branding agencies, or packaging vendors (including design briefs and feedback); packaging specifications and dieline files; print-ready files submitted to packaging manufacturers; packaging guidelines or brand standards manuals; internal presentations concerning packaging options; and any approval memoranda or sign-off documents relating to the final packaging design.

REQUEST NO. 7

Marketing and Advertising Materials

All marketing, advertising, and promotional materials created, distributed, published, or used in connection with the MERIDIAN FRESH Products at any time during the Relevant Period, including but not limited to: print advertisements (including advertisements appearing in newspapers, magazines, trade publications, and circulars); digital advertisements (including banner ads, display ads, paid search ads, and programmatic advertisements); social media posts and advertisements (including posts on Kestrel Services Inc., Northpoint Services Inc., Fenmore Solutions, Dunmore & Co., Pinterest, and any other social media platform); in-store displays, signage, endcap displays, and point-of-sale materials; television or video advertisements (including over-the-top and streaming advertisements); radio advertisements; direct mail pieces and email marketing campaigns; coupons, rebates, and promotional offers; press releases and media advisories; product samples distributed for promotional purposes; influencer marketing agreements and content; and any materials appearing on Brindoval's e-commerce platform (www.crestviewhomegoods.com), including homepage features, product category pages, and landing pages.

REQUEST NO. 8

Advertising and Marketing Expenditures

All Documents reflecting or summarizing advertising, marketing, and promotional expenditures incurred by Brindoval in connection with the MERIDIAN FRESH Products during the Relevant Period, including but not limited to: media buy records; advertising agency invoices; marketing budgets and budget allocations; expenditure summaries; purchase orders for advertising placements; and any internal reports, dashboards, or spreadsheets tracking marketing spend. Such Documents should reflect expenditures broken down by time period (monthly or quarterly), channel (including in-store, digital, print, television, radio, social media, email, and direct mail), geographic region, and amount.

REQUEST NO. 9

Sales Data — Gross Revenue

All Documents reflecting gross revenue, net revenue, and unit sales of MERIDIAN FRESH Products, broken down by month, product SKU (including all-purpose spray, glass cleaner, disinfecting wipes, and dish soap), and sales channel (including retail store sales, e-commerce sales on www.crestviewhomegoods.com, and any third-party e-commerce platform sales), from the date of first sale (on or about July 2022) through the date of production. This Request specifically encompasses, but is not limited to, Documents reflecting or substantiating the approximately $6,800,000 in gross revenue generated by MERIDIAN FRESH Products during the period from July 2022 through November 2022, as referenced in filings in this action, including sales reports, revenue summaries, point-of-sale data, and any data extracted from Brindoval's enterprise resource planning (ERP) or financial reporting systems.

REQUEST NO. 10

Sales Data — Profit and Cost Information

All Documents reflecting the cost of goods sold (COGS), gross profit, net profit, operating expenses attributable to the MERIDIAN FRESH product line, and profit margins for MERIDIAN FRESH Products, broken down by month and product SKU (including all-purpose spray, glass cleaner, disinfecting wipes, and dish soap), from the date of first sale through the date of production. This Request includes, without limitation, cost accounting records, manufacturing cost reports, raw material cost summaries, labor cost allocations, overhead allocations, freight and logistics costs, and any internal profitability analyses or margin reports relating to the MERIDIAN FRESH product line.

REQUEST NO. 11

Sales Projections and Forecasts

All Documents reflecting projected, forecasted, or budgeted sales, revenue, or profit figures for the MERIDIAN FRESH Products, including but not limited to: business plans; financial models; budget presentations; internal projections (including any annualized revenue projections or multi-year forecasts); pro forma financial statements; market sizing analyses; and any Documents prepared for Brindoval's Board of Directors, executive committee, or senior leadership team reflecting expected financial performance of the MERIDIAN FRESH product line.

REQUEST NO. 12

Distribution and Channel Information

All Documents relating to the retail stores, e-commerce platforms, wholesale channels, or other distribution channels through which MERIDIAN FRESH Products have been sold, offered for sale, or distributed during the Relevant Period, including but not limited to: a list identifying each of the approximately 148 Brindoval retail locations at which MERIDIAN FRESH Products have been sold and the 12 Midwestern and Mountain West states in which those locations are situated; store-level sales data; planograms and shelf placement specifications for MERIDIAN FRESH Products; distribution agreements or arrangements with third-party retailers or distributors (if any); third-party e-commerce platform listings (e.g., Amazon, Walmart.com, Adriatic Corporation); and any communications with retail buyers or category managers concerning the placement or distribution of MERIDIAN FRESH Products.

REQUEST NO. 13

Private Label Development Program

All Documents relating to Brindoval's private-label product development program, to the extent such Documents reference, discuss, or relate to the MERIDIAN FRESH Products or the decision to develop private-label household cleaning products, including but not limited to: strategic plans and presentations describing Brindoval's private-label strategy; program guidelines and standard operating procedures for private-label product development; vendor and manufacturer selection criteria; market analyses and category assessments for the household cleaning products category; meeting minutes and presentations from Brindoval's private-label committee or equivalent body; and any analyses comparing Brindoval's private-label products to national brand competitors, including MCB's MERIDIAN-branded products.

REQUEST NO. 14

Consumer Complaints and Feedback — Confusion

All Documents reflecting consumer complaints, inquiries, feedback, reviews, or other communications in which a consumer or potential consumer expressed confusion between MERIDIAN FRESH Products and MCB's MERIDIAN or MERIDIAN CLEAN products, or inquired whether MERIDIAN FRESH Products were manufactured by, affiliated with, connected to, or sponsored by MCB or the maker of MERIDIAN products. This Request includes, without limitation: customer service records (including call center logs, emails, chat transcripts, and social media inquiries); online product reviews (including reviews on www.crestviewhomegoods.com, Amazon, or other platforms); letters or emails from consumers; returns or exchanges motivated by consumer confusion; and any internal Brindoval reports, summaries, or analyses of consumer confusion incidents.

REQUEST NO. 15

Consumer Surveys and Market Research

All consumer surveys, focus group reports, market research studies, consumer perception studies, or consumer testing conducted by or on behalf of Brindoval relating to the MERIDIAN FRESH Products, the MERIDIAN FRESH mark, consumer perceptions of the MERIDIAN FRESH brand, or the likelihood of consumer confusion between MERIDIAN FRESH and any other brand or mark, including but not limited to: survey instruments and questionnaires; raw data and tabulated results; final reports and executive summaries; expert reports or analyses; and any studies or research conducted by Pinnacle Research Group Inc., Dr. Ronald Trask, or any other market research firm, survey expert, or consultant retained by Brindoval. This Request also includes any consumer research conducted during the development or pre-launch phase of the MERIDIAN FRESH product line, including concept testing, name testing, and packaging testing.

REQUEST NO. 16

Competitive Analysis and Competitor References

All Documents in which Brindoval analyzed, discussed, referenced, or compared MCB, MCB's MERIDIAN-branded cleaning products, or any other competitive household cleaning brands in connection with the development, launch, marketing, pricing, or positioning of MERIDIAN FRESH Products. This Request includes, without limitation: competitive intelligence reports; market share analyses; pricing comparisons; promotional benchmarking analyses; shelf placement studies; brand positioning analyses; SWOT analyses; and any internal presentations, memoranda, or communications in which MCB or its products were identified as a competitor, benchmark, or reference point for the MERIDIAN FRESH product line.

REQUEST NO. 17

Third-Party Vendor Communications Regarding MERIDIAN FRESH

All Communications with third-party vendors, suppliers, contract manufacturers, co-packers, packaging companies, label printers, raw material suppliers, or any other third party involved in the manufacture, production, formulation, packaging, labeling, or fulfillment of MERIDIAN FRESH Products, including but not limited to: purchase orders; supply agreements; manufacturing specifications; quality control documents; communications regarding packaging design, label artwork, or trade dress; production schedules; shipping and logistics records; and any communications in which the MERIDIAN FRESH mark or packaging was discussed.

REQUEST NO. 18

Product Formulation and Specifications

All Documents reflecting the product formulations, specifications, ingredient lists, safety data sheets (SDS), and manufacturing standards for each MERIDIAN FRESH product SKU, including all-purpose spray, glass cleaner, disinfecting wipes, and dish soap. This Request includes, without limitation: formulation documents; ingredient sourcing records; product specification sheets; quality assurance and quality control standards; testing reports (including efficacy testing, safety testing, and stability testing); EPA registration documents (if applicable); and any Documents comparing the formulations of MERIDIAN FRESH Products to those of competing products, including MCB's MERIDIAN or MERIDIAN CLEAN products.

REQUEST NO. 19

E-Commerce Platform Documents

All Documents relating to the listing, display, promotion, or sale of MERIDIAN FRESH Products on Brindoval's e-commerce platform (www.crestviewhomegoods.com) and any third-party e-commerce platforms, including but not limited to: product page content (including product titles, descriptions, images, and videos); search keyword data (including paid and organic search keywords associated with MERIDIAN FRESH Products); search engine optimization (SEO) strategies and keyword targeting strategies; web analytics data (including page views, click-through rates, conversion rates, and revenue attributable to MERIDIAN FRESH product pages); metatags and metadata associated with MERIDIAN FRESH product pages; advertising campaigns conducted through e-commerce platforms (including sponsored product listings and display advertisements); and any Documents reflecting the use of the terms "Meridian," "MERIDIAN CLEAN," or "MCB" as search keywords, metatags, or advertising triggers in connection with MERIDIAN FRESH Products.

REQUEST NO. 20

Insurance Policies

All insurance policies, including but not limited to commercial general liability policies, intellectual property liability policies, advertising injury policies, media liability policies, and errors and omissions policies, in effect at any time during the Relevant Period that may provide coverage, indemnification, or a duty to defend with respect to the claims asserted in this action, as required by Rule 26(a)(1)(A)(iv) of the Federal Rules of Civil Procedure. This Request includes the complete policy (including declarations pages, endorsements, exclusions, and amendments), any notices of claim or potential claim submitted to insurers in connection with this action, and any coverage correspondence between Brindoval and its insurers.

REQUEST NO. 21

Organizational and Corporate Documents

All organizational, governance, and corporate documents of Brindoval Home Goods Inc. relevant to the management of intellectual property, brand development, and private-label product oversight during the Relevant Period, including but not limited to: organizational charts identifying persons responsible for trademark matters, intellectual property portfolio management, private-label development, marketing, legal affairs, and brand compliance; corporate governance documents defining the authority and responsibilities of persons involved in the adoption and approval of new trademarks; and any policies, procedures, or guidelines governing the selection, clearance, and adoption of new brand names and trademarks by Brindoval.

REQUEST NO. 22

Board and Executive Communications

All minutes of meetings of Brindoval's Board of Directors, executive committee, or senior leadership team at which the MERIDIAN FRESH product line, MCB's cease-and-desist demand, MCB's trademark rights, or this litigation were discussed, referenced, or considered, to the extent not protected by a valid claim of attorney-client privilege or work-product doctrine. This Request also includes agendas, presentations, reports, and any other materials distributed to the Board of Directors or executive committee in connection with such discussions. If any Document responsive to this Request is withheld on the basis of privilege, Brindoval shall identify such Document on a privilege log as described in Instruction No. 4 above.

REQUEST NO. 23

Communications Regarding MCB's Cease-and-Desist Letter

All Documents and Communications relating to MCB's cease-and-desist letter dated September 26, 2022, including but not limited to: the cease-and-desist letter itself; any internal Brindoval discussions, analyses, or memoranda concerning the letter, the claims asserted therein, or the demands made therein; any recommendations by Brindoval employees, officers, or directors in response to the letter; any response strategy discussions; any draft or final written responses to MCB or MCB's counsel; and any actions taken or decisions made by Brindoval as a result of receiving the letter (including any decisions to continue, modify, or discontinue the use of the MERIDIAN FRESH mark or trade dress). Documents protected by a valid claim of attorney-client privilege or work-product doctrine may be withheld, provided they are identified on a privilege log as described in Instruction No. 4 above.

REQUEST NO. 24

Communications with Outside Counsel Regarding MCB's Marks

All Communications between Brindoval and Halverson McKay & Pruitt LLP, or any other outside counsel, concerning MCB's MERIDIAN, MERIDIAN CLEAN, or MERIDIAN stylized logo marks; the MERIDIAN FRESH mark; MCB's cease-and-desist demand; the potential for trademark infringement claims; or this dispute, to the extent not protected by a valid claim of attorney-client privilege or work-product doctrine. This Request encompasses, without limitation, communications in which outside counsel provided factual information, business advice (as distinguished from legal advice), or communications that were shared with third parties such that any privilege was waived. If any Document responsive to this Request is withheld on the basis of privilege, Brindoval shall identify such Document on a privilege log as described in Instruction No. 4 above.

REQUEST NO. 25

Documents Relating to the Preliminary Injunction Order

All Documents created, received, reviewed, or relied upon by Brindoval in connection with the Court's January 9, 2023 Order granting in part MCB's Motion for Preliminary Injunction (Dkt. No. 48), which requires, among other things, modification of the MERIDIAN FRESH trade dress, including the removal of the stylized wave device and the modification of the teal-and-white color scheme, within forty-five (45) days of the Order. This Request includes, without limitation: compliance plans and implementation timelines; revised packaging designs, mockups, and prototypes; communications with packaging vendors, printers, and designers regarding the redesign; internal memoranda and presentations concerning compliance; cost estimates for trade-dress modification; and any Documents reflecting Brindoval's assessment of the impact of the Order on its business operations.

REQUEST NO. 26

Compliance with Preliminary Injunction — Trade Dress Modifications

All Documents reflecting steps taken, in progress, or planned by Brindoval to comply with the Court's January 9, 2023 Preliminary Injunction Order, including but not limited to: redesigned packaging artwork and specifications; revised trade dress elements; communications with packaging vendors, label printers, and graphic designers regarding the implementation of trade-dress modifications; production timelines and schedules for new packaging; inventory records reflecting the quantity of existing MERIDIAN FRESH product packaging that must be destroyed, modified, or replaced; cost estimates and actual costs incurred in connection with the trade-dress modification; and any Documents reflecting Brindoval's plans for the transition from the enjoined trade dress to the modified trade dress.

REQUEST NO. 27

Financial Statements and Annual Reports

Brindoval's annual financial statements, 10-K filings (if publicly filed with the U.S. Securities and Exchange Commission), and internal financial reports for fiscal years 2020, 2021, and 2022, to the extent they reflect or relate to: private-label product revenue; the MERIDIAN FRESH product line; the household cleaning products category; or total company revenue and financial performance (including Brindoval's reported fiscal year 2022 total revenue of approximately $2.1 billion). This Request includes, without limitation: audited and unaudited financial statements; income statements; balance sheets; cash flow statements; segment reporting; annual reports to shareholders; and any internal management reports or presentations summarizing Brindoval's financial performance during the specified fiscal years.

REQUEST NO. 28

Documents Relating to Intent or Good Faith

All Documents reflecting or relating to Brindoval's intent, good faith, or lack thereof in adopting the MERIDIAN FRESH mark and associated trade dress, including but not limited to: any Documents in which Brindoval personnel acknowledged, discussed, or evaluated a risk of confusion between the MERIDIAN FRESH mark and MCB's MERIDIAN marks; any Documents in which Brindoval personnel discussed the similarity between the MERIDIAN FRESH mark and MCB's marks (including similarities in name, trade dress, color scheme, or design elements); any Documents reflecting a deliberate decision to adopt a mark similar to MCB's marks; any Documents reflecting Brindoval's awareness that MCB might object to the MERIDIAN FRESH mark; and any Documents reflecting Brindoval's rationale, justification, or business purpose for selecting the specific name "MERIDIAN FRESH" over alternative name candidates.

REQUEST NO. 29

Other Trademark Disputes

All Documents relating to any prior or pending trademark disputes, opposition proceedings, cancellation proceedings, cease-and-desist demands, or infringement claims involving Brindoval's use of marks incorporating the word "MERIDIAN" or any other marks alleged to infringe upon, dilute, or otherwise violate the trademark rights of any third party. This Request includes, without limitation: correspondence with third-party trademark owners or their counsel; Trademark Trial and Appeal Board filings; settlement agreements or coexistence agreements; and any internal Brindoval memoranda or analyses concerning such disputes.

REQUEST NO. 30

Document Preservation and Litigation Hold

All Documents relating to Brindoval's implementation of any litigation hold, document preservation notice, or ESI preservation protocol in connection with this action, MCB's September 26, 2022 cease-and-desist letter, or any reasonable anticipation of litigation concerning the MERIDIAN FRESH mark, including but not limited to: the text of any litigation hold notice or preservation directive issued; the date of issuance of any such notice; the identity of all recipients of such notice; the scope of documents and data sources covered by the hold; any follow-up or reminder notices; any modifications to the hold; any Documents reflecting the suspension of routine document destruction or data deletion policies; any communications with information technology personnel regarding the implementation of the hold; and any policies, procedures, or guidelines governing the retention or destruction of documents, electronically stored information, or other records relevant to this litigation.

\* \* \*

MCB reserves the right to propound additional requests for production of documents as permitted by the Federal Rules of Civil Procedure, the Local Civil Rules of the Southern District of New York, and any applicable orders of the Court.

Respectfully submitted,

CALDERWOOD & HARKNESS LLP

By: ________

Alan Ngo Christy Bauer 1251 Avenue of the Americas, 40th Floor New York, NY 10020 Telephone: (212) 558-4000 Facsimile: (212) 558-3588

Email: alan.ngo@calderwoodharkness.com

Email: christy.bauer@calderwoodharkness.com

Attorneys for Plaintiff Meridian Consumer Brands LLC

Dated: January 30, 2023

CERTIFICATE OF SERVICE

I, Christy Bauer, hereby certify that on January 30, 2023, a true and correct copy of the foregoing Plaintiff Meridian Consumer Brands LLC's First Set of Requests for Production of Documents to Defendant Brindoval Home Goods Inc. (Nos. 1–30) was served upon all counsel of record for Defendant Brindoval Home Goods Inc. via the Court's Electronic Case Filing (ECF) system and via electronic mail to the following:

Gregory T. Halverson Megan Janssen David Kowalski Halverson McKay & Pruitt LLP 225 South Sixth Street, Suite 4200 Minneapolis, MN 55402 Telephone: (612) 339-7000

Email: ghalverson@hmplaw.com

Email: mjanssen@hmplaw.com

Email: dkowalski@hmplaw.com

________________________________________

Christy Bauer CALDERWOOD & HARKNESS LLP 1251 Avenue of the Americas, 40th Floor New York, NY 10020

MERIDIAN CONSUMER BRANDS LLC,

Plaintiff,

v.	Case No. 1:22-cv-09483 (PAA)
BRINDOVAL HOME GOODS INC.,	Hon. Patricia M. Albright

Defendant.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
PLAINTIFF MERIDIAN CONSUMER BRANDS LLC'S FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS TO DEFENDANT BRINDOVAL HOME GOODS INC. (Nos. 1–30)
Date Served: January 30, 2023
Propounding Party:
Calderwood & Harkness LLP 1251 Avenue of the Americas, 40th Floor New York, NY 10020 Attorneys for Plaintiff Meridian Consumer Brands LLC
Directed To:
Brindoval Home Goods Inc. Through its counsel of record: Gregory T. Halverson Halverson McKay & Pruitt LLP 225 South Sixth Street, Suite 4200 Minneapolis, MN 55402
I. PRELIMINARY STATEMENT
Plaintiff Meridian Consumer Brands LLC ("MCB"), by and through its attorneys Calderwood & Harkness LLP, hereby propounds this First Set of Requests for Production of Documents (Nos. 1–30) upon Defendant Brindoval Home Goods Inc. ("Brindoval") and requests that Brindoval produce the documents and things described below in accordance with Rules 26 and 34 of the Federal Rules of Civil Procedure and the Local Civil Rules of the Southern District of New York. Brindoval is requested to produce all responsive documents within thirty (30) days of service of these Requests, or at such other time as agreed upon by the parties or ordered by the Court.
This action arises from MCB's Complaint filed on November 7, 2022, asserting claims against Brindoval for federal trademark infringement under Section 32(1) of the Lanham Act, 15 U.S.C. § 1114(1); false designation of origin under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a); and trademark dilution under New York General Business Law § 360-l. MCB's claims arise from Brindoval's unauthorized adoption, use, and promotion of the mark MERIDIAN FRESH and confusingly similar trade dress in connection with a line of household cleaning products that compete directly with MCB's well-established and federally registered MERIDIAN-branded cleaning products.
MCB is the owner of the following federally registered trademarks, each of which is valid, subsisting, and incontestable:
(a) U.S. Registration No. 4,218,506 for the mark MERIDIAN in International Class 3, covering household cleaning products;
(b) U.S. Registration No. 5,034,771 for the mark MERIDIAN CLEAN in International Class 3, covering household cleaning products; and
(c) U.S. Registration No. 5,589,320 for the MERIDIAN stylized logo with wave device in International Class 3, covering household cleaning products.
Brindoval's accused conduct centers on its adoption and use of the mark MERIDIAN FRESH, which is the subject of pending U.S. trademark application Serial No. 97/412,558 in International Class 3, filed May 12, 2022, and published for opposition on September 6, 2022. The MERIDIAN FRESH mark is used in connection with household cleaning products, including all-purpose spray, glass cleaner, disinfecting wipes, and dish soap, which are sold through Brindoval's retail locations and e-commerce platform.
The documents requested herein are relevant to the claims and defenses in this action, including, without limitation, the likelihood of confusion between the parties' marks, Brindoval's intent in adopting the MERIDIAN FRESH mark, actual consumer confusion, the scope of Brindoval's use and promotion of the accused marks, Brindoval's revenues and profits attributable to the accused products, and MCB's entitlement to injunctive relief, damages, and an accounting of Brindoval's profits.
II. DEFINITIONS
As used in these Requests for Production, the following terms shall have the meanings set forth below. These definitions are to be read in addition to, and not in derogation of, the definitions contained in the Federal Rules of Civil Procedure:
1. "You," "Your," "Defendant," or "Brindoval" means Brindoval Home Goods Inc., a Delaware corporation with its principal place of business in Minneapolis, Minnesota, including its present and former officers, directors, employees, agents, representatives, subsidiaries, affiliates, predecessors, and successors in interest, and any person or entity acting on its behalf or subject to its control, including but not limited to Douglas P. Lindstrom (Chief Executive Officer), Karen A. Whitfield (General Counsel), and Nathan Cho (Vice President, Private Label Development).
2. "MCB" or "Plaintiff" means Meridian Consumer Brands LLC, a Delaware limited liability company with its principal place of business in New York, New York, including its officers, managers, employees, agents, and representatives.
3. "Document" or "Documents" shall have the broadest meaning permitted under Rule 34(a) of the Federal Rules of Civil Procedure and shall include, without limitation, all writings, recordings, and electronically stored information ("ESI") of every kind and description, whether printed, handwritten, typed, recorded, filmed, or stored electronically or magnetically, including but not limited to: correspondence, emails, text messages, instant messages (including messages sent via Meridian Solutions, Northgate Data Systems, or any other collaboration platform), memoranda, reports, presentations, spreadsheets, databases, calendars, datebooks, appointment records, photographs, videos, audio recordings, charts, graphs, maps, drawings, contracts, agreements, purchase orders, invoices, receipts, shipping records, accounting records, financial statements, corporate minutes, board resolutions, organizational charts, policy manuals, notes, diaries, drafts (whether or not superseded), final versions, and any other tangible or electronic thing from which information can be obtained. The term "Document" includes both originals and all non-identical copies, including copies bearing annotations, markings, highlighting, or other modifications.
4. "Communication" or "Communications" means every manner or means of transmitting, exchanging, or conveying information between or among two or more persons, whether oral, written, or electronic, including but not limited to: face-to-face meetings, telephone calls, video conferences, emails, letters, facsimile transmissions, text messages, instant messages, social media messages, voicemail messages, and any other form of information exchange, regardless of the medium or technology used.
5. "MERIDIAN FRESH Products" means all household cleaning products, including but not limited to all-purpose spray, glass cleaner, disinfecting wipes, and dish soap, that have been or are being manufactured, marketed, sold, offered for sale, distributed, or promoted by Brindoval or on Brindoval's behalf under or in connection with the mark MERIDIAN FRESH or any variation thereof.
6. "Accused Marks" means the mark MERIDIAN FRESH in standard character form, and any trade dress associated therewith, including but not limited to the teal-and-white color scheme, the stylized wave device, and any other design elements, logos, or visual identifiers used on MERIDIAN FRESH product packaging, labels, advertising materials, or promotional displays.
7. "Relevant Period" means the period from January 1, 2020 through the date of production of documents responsive to these Requests, unless a different time period is specified in a particular Request.
8. "Identify" means: (a) with respect to a natural person, to state the person's full name, present or last known title or position, employer, business address, telephone number, and email address; (b) with respect to an entity, to state the entity's full legal name, form of organization, state of incorporation or formation, principal place of business, and the identity of the person most knowledgeable about the subject matter at issue; and (c) with respect to a Document, to state the type of Document (e.g., letter, email, memorandum), the date of the Document, the author or sender, all recipients (including "cc" and "bcc" recipients, if applicable), the subject matter, the Bates number range (if already produced), and the present custodian or location of the Document.
9. "Person" means any natural person, corporation, limited liability company, partnership, joint venture, association, trust, governmental entity, or any other legal entity or unincorporated organization.
10. "Relating to" or "Concerning" means referring to, describing, evidencing, constituting, reflecting, mentioning, discussing, analyzing, summarizing, supporting, contradicting, or having any logical connection to the subject matter referenced in the applicable Request. These terms shall be construed broadly to effectuate the full scope of discovery permitted under the Federal Rules of Civil Procedure.
III. INSTRUCTIONS
The following instructions apply to each Request for Production set forth below:
1. Time Period. Unless otherwise specified in a particular Request, these Requests cover the Relevant Period from January 1, 2020 through the date of production.
2. Scope of Production. Brindoval shall produce all responsive Documents in its possession, custody, or control, regardless of the physical location of such Documents. The phrase "possession, custody, or control" shall be construed broadly and includes Documents held by Brindoval's officers, directors, employees, agents, attorneys (to the extent not protected by a valid claim of privilege), consultants, accountants, auditors, contractors, and any other person or entity acting on Brindoval's behalf or subject to Brindoval's direction, as well as Documents that Brindoval has the legal right, authority, or practical ability to obtain upon demand.
3. Format of Production. Documents shall be produced in their native electronic format or as searchable image files (TIFF or PDF) with associated metadata intact and Bates-numbered load files, in accordance with the parties' ESI protocol dated December 19, 2022, or any applicable order of the Court. Native files shall be produced for spreadsheets, databases, and other documents for which native format is necessary to preserve functionality. Emails shall be produced with all attachments and metadata fields, including sender, recipient, date, time, subject line, and custodian information. Hard-copy documents shall be scanned to searchable PDF or TIFF format with Optical Character Recognition (OCR) applied, and produced with Bates numbers.
4. Privilege Log. If any Document responsive to these Requests is withheld in whole or in part, or redacted, on the basis of any claim of privilege, including attorney-client privilege, work-product doctrine, or any other applicable privilege or immunity, Brindoval shall provide a privilege log in accordance with Rule 26(b)(5) of the Federal Rules of Civil Procedure and Local Civil Rule 26.2 of the Southern District of New York. The privilege log shall identify, for each withheld or redacted Document: (a) the type of Document; (b) the date of the Document; (c) the author or sender; (d) all recipients (including "cc" and "bcc" recipients); (e) a description of the subject matter of the Document in sufficient detail to enable MCB to assess the validity of the privilege claim without revealing the privileged content; and (f) the specific privilege(s) or protection(s) asserted.
5. Organization of Production. Documents shall be produced either (a) as they are kept in the ordinary course of business, including identification of the custodian from whose files the documents were collected, or (b) organized and labeled to correspond to the categories in each numbered Request.
6. Continuing Obligation to Supplement. These Requests impose a continuing obligation to supplement Brindoval's production pursuant to Rule 26(e) of the Federal Rules of Civil Procedure. If, after making its initial production, Brindoval becomes aware of additional responsive Documents, Brindoval shall promptly produce such Documents and notify MCB's counsel in writing.
7. Objections. If Brindoval objects to any Request, in whole or in part, Brindoval shall state the specific grounds for the objection with particularity and, notwithstanding the objection, shall produce all responsive Documents as to which no objection is asserted, or as to which the objection does not apply. No general, boilerplate, or non-specific objection shall be deemed to excuse a complete failure to respond to any Request or to produce any Documents.
8. Construction. The use of the singular form of any word includes the plural, and vice versa. The use of the masculine, feminine, or neuter gender includes all genders. The connectives "and" and "or" shall be construed either disjunctively or conjunctively as necessary to bring within the scope of each Request all responses that might otherwise be construed to be outside its scope. The use of "including" or "include" means "including but not limited to."
IV. REQUESTS FOR PRODUCTION
REQUEST NO. 1
Adoption and Selection of the MERIDIAN FRESH Mark
All Documents relating to the conception, creation, selection, evaluation, clearance, or adoption of the mark MERIDIAN FRESH for use on household cleaning products or any other goods, including but not limited to: brainstorming notes; naming proposals; brand name candidate lists; naming evaluation criteria and scoring matrices; branding strategy presentations; creative briefs; meeting agendas and meeting minutes; emails; memoranda; instant messages; presentations; and any other Documents reflecting the process by which the MERIDIAN FRESH name was proposed, considered, evaluated, or ultimately selected. This Request encompasses Documents involving Nathan Cho, Vice President of Private Label Development, or any other person involved in the naming process, including personnel from Brindoval's marketing, product development, legal, and executive leadership teams, as well as any third-party branding agencies or consultants retained by Brindoval in connection with the naming process.
REQUEST NO. 2
Trademark Clearance Searches and Opinions
All trademark search reports, clearance opinions, freedom-to-use opinions, risk assessments, infringement analyses, or any other Documents prepared by or for Brindoval (including by Halverson McKay & Pruitt LLP, or any other law firm, trademark search vendor, or consultant) relating to the availability of the mark MERIDIAN FRESH, or any mark incorporating the word "MERIDIAN," for use on household cleaning products or any goods in International Class 3 or related classes, to the extent not protected by a valid claim of attorney-client privilege or work-product doctrine. This Request includes, without limitation, search results from the United States Patent and Trademark Office's Trademark Electronic Search System (TESS), state trademark databases, common law databases, domain name registries, and any commercial trademark search services (e.g., Pinnacle Data Systems, Marlowe Data Systems, Pemberton & Co.). If any Document responsive to this Request is withheld on the basis of privilege, Brindoval shall identify such Document on a privilege log as described in Instruction No. 4 above.
REQUEST NO. 3
Awareness of MCB's MERIDIAN Marks
All Documents reflecting or relating to Brindoval's knowledge of, awareness of, or familiarity with MCB's MERIDIAN, MERIDIAN CLEAN, or MERIDIAN stylized logo with wave device marks (U.S. Registration Nos. 4,218,506, 5,034,771, and 5,589,320), including but not limited to: any Documents referencing MCB or its products reviewed, received, or created before or during the development of the MERIDIAN FRESH product line; communications in which MCB's marks or products were mentioned or discussed; competitive intelligence reports that identified or analyzed MCB's brands; retail shelf surveys, planograms, or store audits in which MCB's products appeared; trade publication articles mentioning MCB; and any Documents in Brindoval's files that contain or reproduce images of MCB's product packaging, advertising materials, or trademarks.
REQUEST NO. 4
Trademark Application Documents
All Documents relating to the preparation, filing, and prosecution of U.S. trademark application Serial No. 97/412,558 for MERIDIAN FRESH in International Class 3, filed May 12, 2022, and published for opposition on September 6, 2022, including but not limited to: the application as filed; specimens of use submitted with the application or in response to any Office Action; all communications with the United States Patent and Trademark Office, including Office Actions issued and responses filed; declarations or affidavits submitted in support of the application; amendments to the application; communications with counsel regarding the preparation, filing, or prosecution of the application; and any Documents reflecting the decision to file the application or the selection of the goods and services identified therein. Documents withheld on the basis of attorney-client privilege or work-product doctrine shall be identified on a privilege log as described in Instruction No. 4 above.
REQUEST NO. 5
Internal Branding and Naming Communications
All internal Communications (including emails, instant messages, memoranda, presentations, and meeting notes) among Brindoval employees, officers, or directors relating to the naming, branding, positioning, launch strategy, or marketing strategy of the MERIDIAN FRESH product line, including but not limited to Communications involving Douglas P. Lindstrom (CEO), Karen A. Whitfield (General Counsel), Nathan Cho (VP, Private Label Development), and any member of Brindoval's marketing department, legal department, product development team, or any other internal stakeholder involved in the MERIDIAN FRESH initiative. This Request includes Communications on any platform or medium, including email, Meridian Solutions, Northgate Data Systems, or any other messaging or collaboration platform used by Brindoval.
REQUEST NO. 6
Packaging Design and Trade Dress Development
All Documents relating to the design, development, selection, revision, or approval of the packaging and trade dress for MERIDIAN FRESH Products, including but not limited to: design mockups, comps, and prototypes; color palettes and Pantone color specifications; logo concepts and iterations; typography selections; the development and selection of the teal-and-white color scheme; the creation and development of the stylized wave device; artwork files (including Adobe Illustrator, Photoshop, InDesign, or other design software files); communications with graphic designers, branding agencies, or packaging vendors (including design briefs and feedback); packaging specifications and dieline files; print-ready files submitted to packaging manufacturers; packaging guidelines or brand standards manuals; internal presentations concerning packaging options; and any approval memoranda or sign-off documents relating to the final packaging design.
REQUEST NO. 7
Marketing and Advertising Materials
All marketing, advertising, and promotional materials created, distributed, published, or used in connection with the MERIDIAN FRESH Products at any time during the Relevant Period, including but not limited to: print advertisements (including advertisements appearing in newspapers, magazines, trade publications, and circulars); digital advertisements (including banner ads, display ads, paid search ads, and programmatic advertisements); social media posts and advertisements (including posts on Kestrel Services Inc., Northpoint Services Inc., Fenmore Solutions, Dunmore & Co., Pinterest, and any other social media platform); in-store displays, signage, endcap displays, and point-of-sale materials; television or video advertisements (including over-the-top and streaming advertisements); radio advertisements; direct mail pieces and email marketing campaigns; coupons, rebates, and promotional offers; press releases and media advisories; product samples distributed for promotional purposes; influencer marketing agreements and content; and any materials appearing on Brindoval's e-commerce platform (www.crestviewhomegoods.com), including homepage features, product category pages, and landing pages.
REQUEST NO. 8
Advertising and Marketing Expenditures
All Documents reflecting or summarizing advertising, marketing, and promotional expenditures incurred by Brindoval in connection with the MERIDIAN FRESH Products during the Relevant Period, including but not limited to: media buy records; advertising agency invoices; marketing budgets and budget allocations; expenditure summaries; purchase orders for advertising placements; and any internal reports, dashboards, or spreadsheets tracking marketing spend. Such Documents should reflect expenditures broken down by time period (monthly or quarterly), channel (including in-store, digital, print, television, radio, social media, email, and direct mail), geographic region, and amount.
REQUEST NO. 9
Sales Data — Gross Revenue
All Documents reflecting gross revenue, net revenue, and unit sales of MERIDIAN FRESH Products, broken down by month, product SKU (including all-purpose spray, glass cleaner, disinfecting wipes, and dish soap), and sales channel (including retail store sales, e-commerce sales on www.crestviewhomegoods.com, and any third-party e-commerce platform sales), from the date of first sale (on or about July 2022) through the date of production. This Request specifically encompasses, but is not limited to, Documents reflecting or substantiating the approximately $6,800,000 in gross revenue generated by MERIDIAN FRESH Products during the period from July 2022 through November 2022, as referenced in filings in this action, including sales reports, revenue summaries, point-of-sale data, and any data extracted from Brindoval's enterprise resource planning (ERP) or financial reporting systems.
REQUEST NO. 10
Sales Data — Profit and Cost Information
All Documents reflecting the cost of goods sold (COGS), gross profit, net profit, operating expenses attributable to the MERIDIAN FRESH product line, and profit margins for MERIDIAN FRESH Products, broken down by month and product SKU (including all-purpose spray, glass cleaner, disinfecting wipes, and dish soap), from the date of first sale through the date of production. This Request includes, without limitation, cost accounting records, manufacturing cost reports, raw material cost summaries, labor cost allocations, overhead allocations, freight and logistics costs, and any internal profitability analyses or margin reports relating to the MERIDIAN FRESH product line.
REQUEST NO. 11
Sales Projections and Forecasts
All Documents reflecting projected, forecasted, or budgeted sales, revenue, or profit figures for the MERIDIAN FRESH Products, including but not limited to: business plans; financial models; budget presentations; internal projections (including any annualized revenue projections or multi-year forecasts); pro forma financial statements; market sizing analyses; and any Documents prepared for Brindoval's Board of Directors, executive committee, or senior leadership team reflecting expected financial performance of the MERIDIAN FRESH product line.
REQUEST NO. 12
Distribution and Channel Information
All Documents relating to the retail stores, e-commerce platforms, wholesale channels, or other distribution channels through which MERIDIAN FRESH Products have been sold, offered for sale, or distributed during the Relevant Period, including but not limited to: a list identifying each of the approximately 148 Brindoval retail locations at which MERIDIAN FRESH Products have been sold and the 12 Midwestern and Mountain West states in which those locations are situated; store-level sales data; planograms and shelf placement specifications for MERIDIAN FRESH Products; distribution agreements or arrangements with third-party retailers or distributors (if any); third-party e-commerce platform listings (e.g., Amazon, Walmart.com, Adriatic Corporation); and any communications with retail buyers or category managers concerning the placement or distribution of MERIDIAN FRESH Products.
REQUEST NO. 13
Private Label Development Program
All Documents relating to Brindoval's private-label product development program, to the extent such Documents reference, discuss, or relate to the MERIDIAN FRESH Products or the decision to develop private-label household cleaning products, including but not limited to: strategic plans and presentations describing Brindoval's private-label strategy; program guidelines and standard operating procedures for private-label product development; vendor and manufacturer selection criteria; market analyses and category assessments for the household cleaning products category; meeting minutes and presentations from Brindoval's private-label committee or equivalent body; and any analyses comparing Brindoval's private-label products to national brand competitors, including MCB's MERIDIAN-branded products.
REQUEST NO. 14
Consumer Complaints and Feedback — Confusion
All Documents reflecting consumer complaints, inquiries, feedback, reviews, or other communications in which a consumer or potential consumer expressed confusion between MERIDIAN FRESH Products and MCB's MERIDIAN or MERIDIAN CLEAN products, or inquired whether MERIDIAN FRESH Products were manufactured by, affiliated with, connected to, or sponsored by MCB or the maker of MERIDIAN products. This Request includes, without limitation: customer service records (including call center logs, emails, chat transcripts, and social media inquiries); online product reviews (including reviews on www.crestviewhomegoods.com, Amazon, or other platforms); letters or emails from consumers; returns or exchanges motivated by consumer confusion; and any internal Brindoval reports, summaries, or analyses of consumer confusion incidents.
REQUEST NO. 15
Consumer Surveys and Market Research
All consumer surveys, focus group reports, market research studies, consumer perception studies, or consumer testing conducted by or on behalf of Brindoval relating to the MERIDIAN FRESH Products, the MERIDIAN FRESH mark, consumer perceptions of the MERIDIAN FRESH brand, or the likelihood of consumer confusion between MERIDIAN FRESH and any other brand or mark, including but not limited to: survey instruments and questionnaires; raw data and tabulated results; final reports and executive summaries; expert reports or analyses; and any studies or research conducted by Pinnacle Research Group Inc., Dr. Ronald Trask, or any other market research firm, survey expert, or consultant retained by Brindoval. This Request also includes any consumer research conducted during the development or pre-launch phase of the MERIDIAN FRESH product line, including concept testing, name testing, and packaging testing.
REQUEST NO. 16
Competitive Analysis and Competitor References
All Documents in which Brindoval analyzed, discussed, referenced, or compared MCB, MCB's MERIDIAN-branded cleaning products, or any other competitive household cleaning brands in connection with the development, launch, marketing, pricing, or positioning of MERIDIAN FRESH Products. This Request includes, without limitation: competitive intelligence reports; market share analyses; pricing comparisons; promotional benchmarking analyses; shelf placement studies; brand positioning analyses; SWOT analyses; and any internal presentations, memoranda, or communications in which MCB or its products were identified as a competitor, benchmark, or reference point for the MERIDIAN FRESH product line.
REQUEST NO. 17
Third-Party Vendor Communications Regarding MERIDIAN FRESH
All Communications with third-party vendors, suppliers, contract manufacturers, co-packers, packaging companies, label printers, raw material suppliers, or any other third party involved in the manufacture, production, formulation, packaging, labeling, or fulfillment of MERIDIAN FRESH Products, including but not limited to: purchase orders; supply agreements; manufacturing specifications; quality control documents; communications regarding packaging design, label artwork, or trade dress; production schedules; shipping and logistics records; and any communications in which the MERIDIAN FRESH mark or packaging was discussed.
REQUEST NO. 18
Product Formulation and Specifications
All Documents reflecting the product formulations, specifications, ingredient lists, safety data sheets (SDS), and manufacturing standards for each MERIDIAN FRESH product SKU, including all-purpose spray, glass cleaner, disinfecting wipes, and dish soap. This Request includes, without limitation: formulation documents; ingredient sourcing records; product specification sheets; quality assurance and quality control standards; testing reports (including efficacy testing, safety testing, and stability testing); EPA registration documents (if applicable); and any Documents comparing the formulations of MERIDIAN FRESH Products to those of competing products, including MCB's MERIDIAN or MERIDIAN CLEAN products.
REQUEST NO. 19
E-Commerce Platform Documents
All Documents relating to the listing, display, promotion, or sale of MERIDIAN FRESH Products on Brindoval's e-commerce platform (www.crestviewhomegoods.com) and any third-party e-commerce platforms, including but not limited to: product page content (including product titles, descriptions, images, and videos); search keyword data (including paid and organic search keywords associated with MERIDIAN FRESH Products); search engine optimization (SEO) strategies and keyword targeting strategies; web analytics data (including page views, click-through rates, conversion rates, and revenue attributable to MERIDIAN FRESH product pages); metatags and metadata associated with MERIDIAN FRESH product pages; advertising campaigns conducted through e-commerce platforms (including sponsored product listings and display advertisements); and any Documents reflecting the use of the terms "Meridian," "MERIDIAN CLEAN," or "MCB" as search keywords, metatags, or advertising triggers in connection with MERIDIAN FRESH Products.
REQUEST NO. 20
Insurance Policies
All insurance policies, including but not limited to commercial general liability policies, intellectual property liability policies, advertising injury policies, media liability policies, and errors and omissions policies, in effect at any time during the Relevant Period that may provide coverage, indemnification, or a duty to defend with respect to the claims asserted in this action, as required by Rule 26(a)(1)(A)(iv) of the Federal Rules of Civil Procedure. This Request includes the complete policy (including declarations pages, endorsements, exclusions, and amendments), any notices of claim or potential claim submitted to insurers in connection with this action, and any coverage correspondence between Brindoval and its insurers.
REQUEST NO. 21
Organizational and Corporate Documents
All organizational, governance, and corporate documents of Brindoval Home Goods Inc. relevant to the management of intellectual property, brand development, and private-label product oversight during the Relevant Period, including but not limited to: organizational charts identifying persons responsible for trademark matters, intellectual property portfolio management, private-label development, marketing, legal affairs, and brand compliance; corporate governance documents defining the authority and responsibilities of persons involved in the adoption and approval of new trademarks; and any policies, procedures, or guidelines governing the selection, clearance, and adoption of new brand names and trademarks by Brindoval.
REQUEST NO. 22
Board and Executive Communications
All minutes of meetings of Brindoval's Board of Directors, executive committee, or senior leadership team at which the MERIDIAN FRESH product line, MCB's cease-and-desist demand, MCB's trademark rights, or this litigation were discussed, referenced, or considered, to the extent not protected by a valid claim of attorney-client privilege or work-product doctrine. This Request also includes agendas, presentations, reports, and any other materials distributed to the Board of Directors or executive committee in connection with such discussions. If any Document responsive to this Request is withheld on the basis of privilege, Brindoval shall identify such Document on a privilege log as described in Instruction No. 4 above.
REQUEST NO. 23
Communications Regarding MCB's Cease-and-Desist Letter
All Documents and Communications relating to MCB's cease-and-desist letter dated September 26, 2022, including but not limited to: the cease-and-desist letter itself; any internal Brindoval discussions, analyses, or memoranda concerning the letter, the claims asserted therein, or the demands made therein; any recommendations by Brindoval employees, officers, or directors in response to the letter; any response strategy discussions; any draft or final written responses to MCB or MCB's counsel; and any actions taken or decisions made by Brindoval as a result of receiving the letter (including any decisions to continue, modify, or discontinue the use of the MERIDIAN FRESH mark or trade dress). Documents protected by a valid claim of attorney-client privilege or work-product doctrine may be withheld, provided they are identified on a privilege log as described in Instruction No. 4 above.
REQUEST NO. 24
Communications with Outside Counsel Regarding MCB's Marks
All Communications between Brindoval and Halverson McKay & Pruitt LLP, or any other outside counsel, concerning MCB's MERIDIAN, MERIDIAN CLEAN, or MERIDIAN stylized logo marks; the MERIDIAN FRESH mark; MCB's cease-and-desist demand; the potential for trademark infringement claims; or this dispute, to the extent not protected by a valid claim of attorney-client privilege or work-product doctrine. This Request encompasses, without limitation, communications in which outside counsel provided factual information, business advice (as distinguished from legal advice), or communications that were shared with third parties such that any privilege was waived. If any Document responsive to this Request is withheld on the basis of privilege, Brindoval shall identify such Document on a privilege log as described in Instruction No. 4 above.
REQUEST NO. 25
Documents Relating to the Preliminary Injunction Order
All Documents created, received, reviewed, or relied upon by Brindoval in connection with the Court's January 9, 2023 Order granting in part MCB's Motion for Preliminary Injunction (Dkt. No. 48), which requires, among other things, modification of the MERIDIAN FRESH trade dress, including the removal of the stylized wave device and the modification of the teal-and-white color scheme, within forty-five (45) days of the Order. This Request includes, without limitation: compliance plans and implementation timelines; revised packaging designs, mockups, and prototypes; communications with packaging vendors, printers, and designers regarding the redesign; internal memoranda and presentations concerning compliance; cost estimates for trade-dress modification; and any Documents reflecting Brindoval's assessment of the impact of the Order on its business operations.
REQUEST NO. 26
Compliance with Preliminary Injunction — Trade Dress Modifications
All Documents reflecting steps taken, in progress, or planned by Brindoval to comply with the Court's January 9, 2023 Preliminary Injunction Order, including but not limited to: redesigned packaging artwork and specifications; revised trade dress elements; communications with packaging vendors, label printers, and graphic designers regarding the implementation of trade-dress modifications; production timelines and schedules for new packaging; inventory records reflecting the quantity of existing MERIDIAN FRESH product packaging that must be destroyed, modified, or replaced; cost estimates and actual costs incurred in connection with the trade-dress modification; and any Documents reflecting Brindoval's plans for the transition from the enjoined trade dress to the modified trade dress.
REQUEST NO. 27
Financial Statements and Annual Reports
Brindoval's annual financial statements, 10-K filings (if publicly filed with the U.S. Securities and Exchange Commission), and internal financial reports for fiscal years 2020, 2021, and 2022, to the extent they reflect or relate to: private-label product revenue; the MERIDIAN FRESH product line; the household cleaning products category; or total company revenue and financial performance (including Brindoval's reported fiscal year 2022 total revenue of approximately $2.1 billion). This Request includes, without limitation: audited and unaudited financial statements; income statements; balance sheets; cash flow statements; segment reporting; annual reports to shareholders; and any internal management reports or presentations summarizing Brindoval's financial performance during the specified fiscal years.
REQUEST NO. 28
Documents Relating to Intent or Good Faith
All Documents reflecting or relating to Brindoval's intent, good faith, or lack thereof in adopting the MERIDIAN FRESH mark and associated trade dress, including but not limited to: any Documents in which Brindoval personnel acknowledged, discussed, or evaluated a risk of confusion between the MERIDIAN FRESH mark and MCB's MERIDIAN marks; any Documents in which Brindoval personnel discussed the similarity between the MERIDIAN FRESH mark and MCB's marks (including similarities in name, trade dress, color scheme, or design elements); any Documents reflecting a deliberate decision to adopt a mark similar to MCB's marks; any Documents reflecting Brindoval's awareness that MCB might object to the MERIDIAN FRESH mark; and any Documents reflecting Brindoval's rationale, justification, or business purpose for selecting the specific name "MERIDIAN FRESH" over alternative name candidates.
REQUEST NO. 29
Other Trademark Disputes
All Documents relating to any prior or pending trademark disputes, opposition proceedings, cancellation proceedings, cease-and-desist demands, or infringement claims involving Brindoval's use of marks incorporating the word "MERIDIAN" or any other marks alleged to infringe upon, dilute, or otherwise violate the trademark rights of any third party. This Request includes, without limitation: correspondence with third-party trademark owners or their counsel; Trademark Trial and Appeal Board filings; settlement agreements or coexistence agreements; and any internal Brindoval memoranda or analyses concerning such disputes.
REQUEST NO. 30
Document Preservation and Litigation Hold
All Documents relating to Brindoval's implementation of any litigation hold, document preservation notice, or ESI preservation protocol in connection with this action, MCB's September 26, 2022 cease-and-desist letter, or any reasonable anticipation of litigation concerning the MERIDIAN FRESH mark, including but not limited to: the text of any litigation hold notice or preservation directive issued; the date of issuance of any such notice; the identity of all recipients of such notice; the scope of documents and data sources covered by the hold; any follow-up or reminder notices; any modifications to the hold; any Documents reflecting the suspension of routine document destruction or data deletion policies; any communications with information technology personnel regarding the implementation of the hold; and any policies, procedures, or guidelines governing the retention or destruction of documents, electronically stored information, or other records relevant to this litigation.
\* \* \*
MCB reserves the right to propound additional requests for production of documents as permitted by the Federal Rules of Civil Procedure, the Local Civil Rules of the Southern District of New York, and any applicable orders of the Court.
Respectfully submitted,
CALDERWOOD & HARKNESS LLP
By: ________
Alan Ngo Christy Bauer 1251 Avenue of the Americas, 40th Floor New York, NY 10020 Telephone: (212) 558-4000 Facsimile: (212) 558-3588
Email: alan.ngo@calderwoodharkness.com
Email: christy.bauer@calderwoodharkness.com
Attorneys for Plaintiff Meridian Consumer Brands LLC
Dated: January 30, 2023
CERTIFICATE OF SERVICE
I, Christy Bauer, hereby certify that on January 30, 2023, a true and correct copy of the foregoing Plaintiff Meridian Consumer Brands LLC's First Set of Requests for Production of Documents to Defendant Brindoval Home Goods Inc. (Nos. 1–30) was served upon all counsel of record for Defendant Brindoval Home Goods Inc. via the Court's Electronic Case Filing (ECF) system and via electronic mail to the following:
Gregory T. Halverson Megan Janssen David Kowalski Halverson McKay & Pruitt LLP 225 South Sixth Street, Suite 4200 Minneapolis, MN 55402 Telephone: (612) 339-7000
Email: ghalverson@hmplaw.com
Email: mjanssen@hmplaw.com
Email: dkowalski@hmplaw.com
________________________________________
Christy Bauer CALDERWOOD & HARKNESS LLP 1251 Avenue of the Americas, 40th Floor New York, NY 10020
MERIDIAN CONSUMER BRANDS LLC,
<!-- indent:2 -->Plaintiff,<!-- /indent -->
v. | Case No. 1:22-cv-09483 (PAA)
BRINDOVAL HOME GOODS INC., | Hon. Patricia M. Albright
<!-- indent:2 -->Defendant.<!-- /indent -->