Gulfstream Aerospace Corporation v. Gulfstream Unsinkable Boats, LLC

Filing 65

ORDER granting in part and denying in part 61 Motion to Compel. Signed by Magistrate Judge Amanda Arnold Sansone on 7/14/2021. (BEE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
GULFSTREAM AEROSPACE
CORPORATION,
Plaintiff,
v.

Case No. 8:20-cv-1147-KKM-AAS

GULFSTREAM UNSINKABLE
BOATS, LLC,
Defendant.
___________________________________/
ORDER
Plaintiff Gulfstream Aerospace Corporation (GSA) moved to compel
Defendant Gulfstream Unsinkable Boats, LLC (GUB) to respond to GSA’s
First Set of Interrogatories. (Doc. 61). The court took GSA’s motion under
advisement and directed the parties to confer and file a notice advising
whether and to what extent the motion was resolved. (Doc. 62).
According to the notice, these issues remain unresolved: (1) GUB’s
responses to Interrogatory Nos. 1-5 and 10-11 stating the requests are
premature; and (2) GUB’s objections or responses to Interrogatory Nos. 2, 11,
and 13. (See Doc. 63). GUB responded in opposition to GSA’s motion to compel
and notice. (Doc. 64).

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A.

GSA’s Interrogatory Nos. 1-5, and 10-11

GUB responded to Interrogatory Nos. 1-5 and 10-11 that “[d]iscovery in
this matter has just begun and GUB is unable to identify all such facts at this
time and such a request is objectionable and improper.” (Doc. 63, Ex. 1, pp. 56). GUB agrees to revise its responses to Interrogatory Nos. 1-5, and 10-11 and
remove any objections about discovery being at its inception or ongoing
discovery as a basis for an inability to identify facts relating to such responses,
subject to GUB’s right to supplement its responses if new information is
learned. (Doc. 64, p. 3). As such, this issue is moot.
B.

GUB’s objection or response to GSA’s Interrogatory Nos. 2,
11, and 13
1.

Interrogatory No. 2

GSA’s Interrogatory No. 2 requests “all facts that support [GUB’s]
Affirmative Defense No. 5.”1 (Doc. 63, Ex. A, p. 5). GUB responded that “GUB
has used the Gulfstream and/or Gulf Stream mark in a manner that is
descriptive of the geographic location of the origin of its products and also of
the quality of its boats as being unsinkable in the gulfstream current and with
direct reference to the famous ocean current in fair use.” (Id. at pp. 5-6). GSA
GUB’s fifth affirmative defense states, “GUB’s use of the “Gulfstream” mark are
within fair use and it is using the mark, not in a trademark sense to in any way refer
to GSA, a company with a history of highly publicized airline crashed and deaths
associated with its products, but rather in a descriptive sense that refers to the
Gulfstream oceanic current that is intimately related to boating, fishing and aquatic
pursuits.” (Doc. 22, pp. 8-9).
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argues GUB’s response improperly fails to identify any facts or documents that
show “descriptive fair use” of its marks. (Doc. 63, p. 4).
In GUB’s second supplemental response to GSA’s Interrogatory No. 2
GUB cited deposition testimony from Huntington James about this issue. (Doc.
63, Ex. A, pp. 5-6). GUB also stated that it contends that all “uses of the GUB
marks, even if made part of a trademark application/registration or as a
product identifier by GUB, are really used in a descriptive sense in order to
refer to the Gulfstream oceanic current that is related to boating, fishing, and
aquatic pursuits and which relate to the boat’s qualities and characteristics to
be unsinkable in the famous gulfstream oceanic current and geographically
descriptive of its Florida location on the gulfstream and, more particularly,
Tampa Bay where GUB’s headquarters near the gulfstream current.” (Id.).
GUB’s second supplemental response

to Interrogatory No. 2 is

sufficiently detailed and GSA’s motion to compel as to this issue is denied.
2.

Interrogatory No. 11

GSA’s Interrogatory No. 11 requests “all facts relating to any alleged use
of the GUB Marks by GUB otherwise than as a mark.” (Doc. 63, Ex. A, p. 7).
GUB objected to Interrogatory No. 11 because it “calls for a legal conclusion
and is vague as framed in that ‘otherwise than as a mark’ is not defined.” (Id.).
GSA argues the wording “otherwise than as a mark” is a quote from the

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descriptive fair use defense codified in Section 33(b)(4) of the Lanham Act, 15
U.S.C. § 1115(b)(4) and thus is not vague or undefined. (Doc. 63, p. 3).
GUB’s supplemental interrogatory response to Interrogatory No. 11
states the term “otherwise than a mark” is not defined in GSA’s Interrogatories
but responded (incorporating its response to Interrogatory No. 2):
. . . In addition, as set forth in its more recent pleadings and moving
papers, GUB has used the Gulfstream and/or Gulf Stream mark in
a manner that is descriptive of the geographic location of the origin
of its products and also of the quality of its boats as being
unsinkable in the gulfstream current and with direct reference to
the famous ocean current in fair use. Such actions haven been
taken by GUB in good faith. All uses of the GUB marks, even if
made part of a trademark application/registration or as a product
identifier by GUB, are really used in a descriptive sense in order
to refer to the Gulfstream oceanic current that is related to
boating, fishing, and aquatic pursuits and which relate to the
boat’s qualities and characteristics to be unsinkable in the famous
gulfstream oceanic current and geographically descriptive of its
Florida location on the gulfstream and, more particularly, Tampa
Bay where GUB’s headquarters near the gulfstream current. GUB
has never intended to be associated with GSA, or its products or
services, nor attempted to use the GUB Marks in a manner that
would reference GSA, but rather its marks and naming were made
to reference and be associated with the famous oceanic current.
(Doc. 63, Ex. A, pp. 5-6, 8).
GUB’s second supplemental response to Interrogatory No. 11 is
sufficiently detailed and GSA’s motion to compel as to this issue is denied.
3.

Interrogatory No. 13

GSA’s Interrogatory No. 13 requests “each cost or deduction from GUB’s
gross sales revenues claimed by GUB pursuant to 15 U.S.C. § 1117(a).” (Doc.
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63, Ex. A, p. 8). GUB’s response states that “GUB has produced confidential
financial records in response to this request, Bates Nos. ‘GUB fed ct 0001-0008’
and ‘GUB fed ct 00111-00115.’ Additional costs and deductions may be
provided by GUB to GSA that show that no net profit has been realized from
the operation of GUB from inception to date. [a]dditional costs and deductions
may be provided by GUB to GSA . . . .” (Id.).
GSA argues if GUB knows of additional costs or deductions responsive
to this interrogatory, it must provide them, rather than state it “may” provide
them. (Doc. 63, p. 5). GUB agrees to produce monthly financial statements that
explain its expense entries and deductions to show that no net profits were
obtained by GUB. (Doc. 64, p. 6).
GUB’s production of its monthly financial statements satisfies GSA’s
concerns about GUB’s response to Interrogatory No. 13.
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Accordingly, GSA’s motion to compel (Doc. 61) is GRANTED in part
and DENIED in part:
(1)

By July 23, 2021, GUB must provide GSA with revised responses

to Interrogatories Nos. 1-5, and 10-11 that remove any objections about
discovery being at its inception or ongoing discovery as a basis for an inability
to identify facts relating to such responses.

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(2)

By July 23, 2021, GUB must begin providing GSA with monthly

financial statements in response to Interrogatory No. 13.
(3)

The discovery deadline expired on July 2, 2021. (See Doc. 49). This

order does not extend the discovery deadline but allows belated discovery
responses for the limited purpose of complying with this order.
(4)

Each party will bear their own attorney’s fees and costs in relation

to the motion. See Fed. R. Civ. P. 37(a)(5)(C).
(5)

In all other respects, GSA’s motion to compel is denied.

ORDERED in Tampa, Florida on July 14, 2021.

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