Free Proposed Pretrial Order - District Court of Colorado - Colorado

Case 1:01-cv-00600-JLK-MEH

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 01-cv-0600-JLK-MEH GO PRO, LTD., a Georgia limited liability company, Plaintiff, v. RIVER GRAPHICS, INC., a Colorado corporation, Defendant.

PRETRIAL ORDER

1. DATE AND APPEARANCES The pretrial conference was held on May 31, 2006 at 10:00 a.m. and was attended by: a. Robert R. Brunelli, Esq. Paul S. Cha, Esq. SHERIDAN ROSS P.C. 1560 Broadway, Suite 1200 Denver, Colorado 80202-5141 Attorneys for Plaintiff Go Pro, Ltd. ("Plaintiff") b. Franklin D. Patterson, Esq. William P. Boyle, Esq. PATTERSON, NUSS & SEYMOUR, P.C. 304 Inverness Way South, Suite 305 Englewood, Colorado 80112 Attorneys for Defendant River Graphics, Inc. ("Defendant")

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2. JURISDICTION This Court has original subject matter jurisdiction over all asserted claims under 15 U.S.C. § 1121, 28 U.S.C. §§ 1331 and 1367 (the supplemental jurisdiction statute codifying the ancillary jurisdiction doctrines). 3. CLAIMS AND DEFENSES a. Plaintiff's statement:

This case involves trademark infringement and misappropriation of business values. For more than 20 years, Go Pro has been engaged in the business of embroidering clothing products. Go Pro has been voted one of the top 30 United States companies engaged in clothing embroidery, based upon sales volume and product quality. There are two primary aspects to Go Pro's embroidery business. First, custom clothing embroidery for others, such as corporations that want to have logoed shirts manufactured for a particular event or outing. Second, embroidered clothing for sale into the retail sporting goods marketplace. Go Pro's retail business, the subject matter involved in this action, is dominated by production of shirts and caps embroidered with fishing-related phrases and designs. Go Pro has marketed and sold shirts and caps under and in connection with the trademark "HERE FISHY, FISHY" since at least February 1997. The mark has been embroidered directly into the fabric of clothing products, appears in the label of the clothing product, on hang tags attached to the product and or packaging for the product. Over the years, Go Pro has sold hundreds of thousands of clothing products affixed with the "HERE FISHY, FISHY" trademark, generating millions in sales revenues. 2

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Go Pro has invested substantial time, creative effort and money to develop its highly distinctive, original and successful line of embroidered "HERE FISHY, FISHY" clothing products. As a result of Go Pro's highly distinctive and original trademark and years of superior product development and customer service, Go Pro has developed substantial and significant consumer recognition, trust, loyalty and goodwill in and to its "HERE FISHY, FISHY" trademark. Indeed, Go Pro's establishment and maintenance of this public recognition, trust, loyalty and goodwill has been a significant factor in its financial success and growth. Based on the inherently distinctive character and nature of Go Pro's trademark and its continuous and uninterrupted use of "HERE FISHY, FISHY" for many years in interstate commerce, relevant consumers have come to associate "HERE FISHY, FISHY" when used on clothing products exclusively with Go Pro. Go Pro has thus acquired strong common law rights in "HERE FISHY, FISHY" for clothing products. Go Pro is also the owner of U.S. Trademark Registration No. 2,685,531. The application which matured into the registration was filed on May 8, 2001, issued on February 11, 2003, and covers "HERE FISHY, FISHY" for use in International Class 25 for shirts and headwear. The registration claims a first use date and a first use date in commerce of February 1997. This registration constitutes prima facie evidence that Go Pro owns protectable trademark rights in and to "HERE FISHY, FISHY" for use with at least shirts and headwear. In addition to its "HERE FISHY, FISHY" trademark, Go Pro has developed and has been advertising and using a number of slogans upon embroidered clothing products, including: "BITE ME"; "COME TO PAPA"; "FISH FEAR ME"; "WOMEN LOVE ME FISH FEAR ME"; "WORK SUCKS GONE FISHIN"; etc. Go Pro often also includes a variety of imagery with its slogans, 3

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including a gold barbed fishing hook, various fish, and different fly hooks. Go Pro has invested substantial time, creative effort and money to develop these highly distinctive, original and successful slogans and imagery. Go Pro introduced, among others, its "HERE FISHY, FISHY" line of embroidered clothing to the Rocky Mountain region sporting goods marketplace at a September 1997 Denver Fly Fishing Show. The products were well received and Go Pro obtained numerous orders for the products from regional retail outlets. Prior to the Summer of 1998, Stan Pomery of River & Stream was a Go Pro customer who purchased "HERE FISHY, FISHY" clothing products from Go Pro. Mr. Pomery then met with representatives of River Graphics requesting that it manufacture embroidered clothing products which included "HERE FISHY, FISHY." River Graphics complied with Mr. Pomery's request and began producing copies of Go Pro's "HERE FISHY, FISHY" shirts and caps. River Graphics first began selling clothing embroidered with "HERE FISHY, FISHY" in approximately July of 1998. After River Graphics began producing embroidered "HERE FISHY, FISHY" clothing from River & Stream, Mr. Pomery discontinued all purchase of clothing from Go Pro. Without authorization, River Graphics continues to use Go Pro's "HERE FISHY, FISHY" on and in connection with clothing products. River Graphics has even been so bold as to use Go Pro's trademark with imagery, such as fly hooks and fish images, which are substantially similar, if not identical to those used by Go Pro. Moreover, River Graphics usurped a substantial number of Go Pro's slogans, including: "BITE ME"; "COME TO PAPA"; "FISH FEAR ME" and "WOMEN LOVE ME FISH FEAR ME;" "WORK SUCKS GONE FISHIN." River Graphics first used Go Pro's 4

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"HERE FISHY, FISHY", imagery and slogans, without authorization, long after Go Pro had acquired legally protectable rights in and to these valuable business properties. It is believed that River Graphics purposefully chose to identify itself with Go Pro by use of the Go Pro trademarks, slogans and imagery to more easily reach Go Pro's established customers, penetrate Go Pro's market, and otherwise freeride on Go Pro's business values and goodwill. River Graphics's misappropriation of Go Pro's goodwill and reputation, by unauthorized use of Go Pro's trademarks, slogans and imagery, was simply to provide River Graphics with a proven identity and to make the sale of its products easier. Since both companies market and sell their products in the same types of distribution channels, River Graphics's actions are likely to cause confusion or mistake, or to deceive the public as to the source and quality of its products. River Graphics' actions have obviously been motivated by financial gain, have been taken with full knowledge of Go Pro's preexisting rights and are without regard to the public policy right of consumers to be free of confusion as to the source and origin of products. River Graphics was put on notice of their infringing use of Go Pro's property as early as 1998, when Go Pro sent a cease and desist letter demanding that River Graphics discontinue all infringing use of Go Pro's property. Despite actual notice, River Graphics has continued to willfully infringe upon Go Pro's superior rights. River Graphics's continued use of Go Pro's property after notice evidences a wrongful intent to trade upon Go Pro's goodwill and reputation. River Graphics's actions have created a likelihood of consumer confusion as to the affiliation, connection or association of itself with Go Pro and as to the origin, sponsorship or approval of its goods by Go Pro. Consequently, River Graphics's continued, unauthorized use of Go Pro's "HERE 5

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FISHY, FISHY" constitutes unfair competition under § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) and Colorado common law. River Graphics has also misappropriated for itself, at little or no cost, Go Pro's valid and protectable business values, including the unauthorized use upon clothing of "HERE FISHY, FISHY", "BITE ME', "COME TO PAPA", "FISH FEAR ME", "WOMEN LOVE ME FISH FEAR ME", and "WORK SUCKS GONE FISHIN" in violation of Colorado common law. Go Pro seeks a finding that River Graphics has engaged in federal unfair competition and willful and wanton unfair competition under Colorado common law. Go Pro also seeks a declaration that River Graphics has willfully and wantonly misappropriated its valid and protectable business values in violation of Colorado common law. Go Pro is being irreparably harmed by River Graphics's unlawful actions and has no adequate remedy at law. Go Pro thus seeks entry of a permanent injunction precluding any further advertising, distribution, sale, or use of "HERE FISHY, FISHY" and "BITE ME", "COME TO PAPA", "FISH FEAR ME", "WOMEN LOVE ME FISH FEAR ME", and "WORK SUCKS GONE FISHIN" by River Graphics. Go Pro seeks lost profits for every infringing "HERE FISHY, FISHY" clothing item sold by River Graphics, as outlined below:

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Item

Total Units Sold By River Graphics (01/01/98 - 9/26/01)* 14,149 3,545

Go Pro's Average Profit $4.17 $2.42 TOTAL

Total Damage

T-Shirt # 20 "HERE FISHY, FISHY" Caps # 95 & # 96 "HERE FISHY, FISHY"

$59,001.33 $8,578.90 $67,580.23

Go Pro also seeks River Graphics profits for every infringing "HERE FISHY, FISHY" clothing item it has sold, as outlined below: Item T-Shirt # 20 "HERE FISHY, FISHY" Caps # 95 & # 96 "HERE FISHY, FISHY" Defendant's Gross Revenues (01/01/98 - 9/26/01)* 14,149 @ $10.00 = 3,545 @ $7.50 = TOTAL Total Damage $141,490.00 $26,587.50 $168,077.50

Go Pro further seeks lost profits for every item sold by River Graphics that includes a misappropriated Go Pro slogan (exclusive of "HERE FISHY, FISHY"), as outlined below:

Go Pro has requested updated financial information. Once that information is received, Go Pro shall update its Summary Damage calculations. 7

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Item

To Units Sold by River Graphics (01/01/98 - 9/26/01)* 12,108 5,957 413 140 487 54 634

Go Pro's Average Gross Profits $4.17 $2.42 $4.17 $2.42 $4.17 $2.42 $4.17

Total Damage

T-Shirt # 20 "BITE ME" Caps # 95 & # 96 "BITE ME" T-Shirt # 20 "COME TO PAPA" Caps # 95 & # 96 "COME TO PAPA" T-Shirt # 20 "FISH FEAR ME" Caps # 95 & # 96 "FISH FEAR ME" T-Shirt # 20 "WOMEN LOVE ME FISH FEAR ME" Caps # 95 & # 96 "WOMEN LOVE ME FISH FEAR ME" T-Shirt # 20 "WORK SUCKS GONE FISHIN" Caps # 95 & # 96 "WORK SUCKS GONE FISHIN"

$50,490.34 $14,415.94 $1,705.69 $338.80 $2,030.79 $130.68 $2,643.78

108

$2.42

$261.36

N/A

$4.17

N/A

N/A

$2.42

N/A

TOTAL

$72,017.38

Go Pro has requested updated financial information. Once that information is received, Go Pro shall update its Summary Damage calculations. 8

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In addition, Go Pro seeks River Graphics profits for every item including Cap Slogans sold by River Graphics and including a misappropriated Go Pro slogan (exclusive of "HERE FISHY, FISHY"), as outlined below: Item T-Shirt # 20 "BITE ME" Caps # 95 & # 96 "BITE ME" T-Shirt # 20 "COME TO PAPA" Caps # 95 & # 96 "COME TO PAPA" T-Shirt # 20 "FISH FEAR ME" Caps # 95 & # 96 "FISH FEAR ME" T-Shirt # 20 "WOMEN LOVE ME FISH FEAR ME" Caps # 95 & # 96 "WOMEN LOVE ME FISH FEAR ME" T-Shirt # 20 "WORK SUCKS GONE FISHIN" Defendant's Gross Revenue (01/01/98 - 9/26/01)* 12,108 @ $10.00 5,957 @ $7.50 413 @ $10.00 140 @ $7.50 487 @ $10.00 54 @ $7.50 634 @ $10.00 Total Damage $121,080.00 $44,677.50 $4,130.00 $1,050.00 $4,870.00 $405.00 $6,340.00

108 @ $7.50

$810.00

N/A @ $10.00

N/A

Go Pro has requested updated financial information. Once that information is received, Go Pro shall update its Summary Damage calculations. 9

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Caps # 95 & # 96 "WORK SUCKS GONE FISHIN"

N/A @ $7.50 TOTAL

N/A $183,362.00

Alternatively, Go Pro seeks a reasonable royalty of $4.17 for every shirt sold by River Graphics that includes any Go Pro property and a reasonable royalty of $2.42 for every cap sold by River Graphics that included any Go Pro property. Finally, Go Pro seeks punitive damages for River Graphic's willful, wanton and reckless violation of Colorado common law. b. Defendant's statement:

The phrase "Here Fishy, Fishy" is a popular, comical way to, among other things, call to fish when fishing. It is a phrase popularized by a Sesame Street skit involving Bert & Ernie which used the saying "Here Fishy, Fishy, Fishy". This saying remains widely popular today as evidenced by a search of the Internet which demonstrates many, many adaptations and uses of the phrase related to fishing. It has been used in bumper stickers, coffee mugs, clothing, hats, posters, and even in Monty Python graphics. Go Pro, Ltd. ("Go Pro") began selling clothing with the phrase "Here Fishy, Fishy" embroidered in large lettering in February 1997. Plaintiff claims that it has protectable trademark rights to the phrase "Here Fishy, Fishy" and, therefore, has exclusive right to use that phrase in clothing sales nationwide. In the summer of 1998, Stan Pomeroy of River & Stream (a retailer located in Southglen Mall in Denver, Colorado) met with Larry Parsons of River Graphics for the purpose of purchasing shirts adorned with the phrase "Here Fishy, Fishy" accompanied by a picture of a hook and worm.

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At that time, Mr. Pomeroy indicated that previously purchased shirts with the same phrase but that he could not get the shirts in extra large sizes. He was also dissatisfied with the quality of materials supplied by Go-Pro. He requested that River Graphics put the phrase "Here Fishy, Fishy" on shirts along with the image of a fly-fishing fly. River Graphics agreed to create the requested products having no understanding of who produced the other shirts or what they looked like. Defendant began selling t-shirts and other clothing products with the phrase "Here Fishy, Fishy" in July 1998. Plaintiff claimed that such use was a violation of Plaintiff's trademark rights under the Lanham Act and Colorado common law. In early 1999, Plaintiff attempted to have the phrase "Here Fishy, Fishy" registered as a protected trademark on the Principal Register in the U.S. Patent and Trademark Office. On August 3, 1999, the U.S. P.T.O. rejected Plaintiff's application because the Examining Officer determined that the phrase did not constitute a protectable trademark but was merely ornamental or decorative. Registration on the Principal Register provides the trademark with certain statutory protections under the Lanham Act. However, if the mark will not be recognized as an indication of origin of the particular product or service, it cannot be registered on the Principal Register and does not receive protections under the Lanham Act. On April 5, 2006, this Court ruled that Plaintiff's claims asserted pursuant to §32(1) of the Lanham Act failed as a matter of law. At all times relevant to this action, the phrase "Here Fishy, Fishy" to which Go Pro claimed common law trademark protection was used ornamentally. The use of said phrase has not gained 11

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secondary meaning as to origin or in connection with Go Pro. Go Pro did not acquire distinctiveness in the "Here Fishy, Fishy" saying, and this saying is not even original with Go Pro, but has been a popular phrase among fisherman and the general public alike for a long time. Go Pro's claim to exclusive use of this and other phrases that are in the common usage of the general public, including "Bite Me", "Come to Papa", "Fish Fear Me", "Women Love Me, Fish Fear Me", "Work Sucks Gone Fishing", etc. are without basis and River Graphics denies that Go Pro has exclusive rights in these phrases or in the imagery commonly associated with them. River Graphics is using the saying and common imagery in a fair manner to take advantage of the popularity of the saying, and not in a way that is likely to cause confusion, mistake or deception. River Graphic's use of the phrase does not constitute false representations as to source, sponsorship and/or approval. Plaintiff's claim for lost profits is based on the number of products sold by River Graphics by the gross profit margins realized by Go Pro for sale of products bearing the same phrase. Specifically, Go Pro's theory of damages is to multiply the products sold by River Graphics by the following profit margins: t-shirts 6-panel relaxed hats 6-panel regular hats Bucket hats $4.55 $2.48 $2.88 $2.94

Go Pro is not entitled to damages because River Graphics' use of the phrase "Here Fishy, Fishy" did not cause, nor was it likely to cause, confusion as to the source of the products or that 12

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River Graphics sold products as those of Go Pro. The uses of the phrase "Here Fishy, Fishy" by Go Pro and River Graphics, at all time relevant, was similar use - ornamental in nature - and does not, nor is it intended to, confuse the public as to the origin of the product. Defendant's intent in selling products adorned with the phrase "Here Fishy, Fishy" was to decorate those products in a way that was pleasing to the consumer and would result in increased sales. Despite assertions that Go Pro has invested substantial time, creative effort and money to develop the phrase "Here Fishy, Fishy," Go Pro has admitted that no documents exist which evidence the costs incurred by Go Pro in allegedly establishing a protectable interest in the subject phrase. Go Pro's claims are barred by the doctrines of laches, waiver, estoppel and acquiescence. Go Pro, with actual notice, did nothing for a period of time at least two years and three months (and possibly longer) to bring claims against River Graphics. Go Pro sent a cease and desist letter to River Graphics in January 1999 regarding the issues litigated in this action. Go Pro did not initiate this action, however, until April 2001. The inexcusable delay in this case precludes Go Pro's claims for any alleged lost profits. River Graphics seeks a finding that Go Pro did not possess common law trademark rights for exclusive use of the phrase "Here Fishy, Fishy" as to the sale of apparel. In the alternative, if Go Pro is able to establish a protectable common law trademark in the use of the phrase "Here Fishy, Fishy" with regard to apparel, River Graphics seeks an order precluding all claims for lost profits due to inexcusable laches in initiating this action against River Graphics. c. Other parties' statement: None. 13

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4. STIPULATIONS 1. 2. 3. Plaintiff Go Pro, Ltd. is a Georgia limited liability company; Defendant River Graphics, Inc. is a Colorado corporation; Go Pro began embroidering the phrase "HERE FISHY, FISHY" on shirts and caps and marketed them for retail in their 1997 catalogue under "Design No. 144." 4. Go Pro begin distributing the catalog to existing and potential customers in January 1997. 5. The first commercial order for products labeled with "HERE FISHY, FISHY" from Go Pro was filled in mid-February 1997. 6. River Graphics has advertised, distributed and sold and continues to advertise, distribute, sell, all in interstate commerce, embroidered clothing, adorned with the phrase "HERE FISHY, FISHY". 7. 8. River Graphics attended the 1997 Denver Fly Fishing Show. Go Pro had actual knowledge of River Graphic's use of the phrase "HERE FISHY, FISHY" 27 months prior to bringing suit. 5. PENDING MOTIONS None. 6. WITNESSES a. Nonexpert Witnesses Witnesses for Plaintiff Go Pro, Ltd.: (1) Witnesses who will be present at trial [see Fed.R.Civ. P. 26(a)(3)(A)]; 14

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(a)

Chester Graham, President, Go Pro, Ltd., Atlanta, Georgia

Mr. Graham has information relevant to Go Pro's ownership of "HERE FISHY, FISHY" and the Cap Slogans. Mr. Graham also has information relevant to policing of its trademarks and other business values, as well as the overall value of such property to Go Pro. Mr. Graham may also have information relevant to River Graphics' infringement of those intellectual property rights and damages resulting from that infringement. (b) Larry Parsons, President, River Graphics, Inc., Denver, Colorado

Mr. Parsons is the President of River Graphics and has knowledge regarding River Graphics' infringement of Go Pro's intellectual property rights. Mr. Parsons also has information concerning the extent and circumstances under which such infringement and misappropriation first occurred, the extent of such infringement, the revenues River Graphics has generated from its infringing conduct, etc. (c) Stan Pomery, Denver, Colorado

Mr. Pomery has knowledge regarding River Graphics' first use of the saying "HERE FISHY, FISHY" on shirts and hats and misappropriation of its business values. (2) Witnesses who may be present at trial if the need arises [see id.]; and (a) Gene McColley

Upon information and belief, Mr. McColley's address and other contact information is known to River Graphics. Mr. McColley may have information relevant to River Graphics' infringement of Go Pro's intellectual property rights and misappropriation of its business values.

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(b)

Chris Holstom, Denver, Colorado

Upon information and belief, Mr. Holstom's address and other contact information is known to River Graphics. Mr. Holstom may have information relevant to River Graphics' infringement of Go Pro's intellectual property rights and misappropriation of its business values. (c) Mark Winward, Seattle, Washington

Upon information and belief, Mr. Winward's address and other contact information is known to River Graphics. Mr. Winward may have information relevant to River Graphics' infringement of Go Pro's intellectual property rights and misappropriation of its business values. (d) Tim Evans, Vice President, River Graphics, Inc., Denver, Colorado

Upon information and belief, Mr. Evans' address and other contact information is known to River Graphics. Mr. Evans may have information relevant to River Graphics' infringement of Go Pro's intellectual property rights. (e) David Shears, Denver, Colorado

Upon information and belief, Mr. Shears' address and other contact information is known to River Graphics. Mr. Shears may have information relevant to River Graphics' infringement of Go Pro's intellectual property rights and misappropriation of its business values. (f) Paul Adelman, Oceanside, California

Mr. Adelman may have information concerning Quality Classics' implementation of the mark "HERE FISHY, FISHY" on or in connection with silk-screened clothing products. (g) (h) Any witness listed by River Graphics Any witness needed for rebuttal 16

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(3)

Witnesses whose testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony. [See Fed. R. Civ. P. 26(a)(3)(B).] (a) Stan Pomery, Denver, Colorado

Mr. Pomery has knowledge regarding River Graphics' first use of "HERE FISHY, FISHY" on shirts and hats and misappropriation of business values. (b) David Shears, Denver, Colorado

Upon information and belief, Mr. Shears may have information relevant to River Graphics' infringement of Go Pro's intellectual property rights and business values. Witnesses for Defendant River Graphics, Inc.: (1) Witnesses who will be present at trial [see Fed.R.Civ. P. 26(a)(3)(A)]; (a) Larry Parsons

Mr. Parsons is the President of River Graphics and has knowledge regarding River Graphics' use of the phrase "Here Fishy, Fishy" on clothing and hats as well as the lack of secondary meaning regarding the mark. Mr. Parsons also has information and knowledge regarding the likelihood of confusion as to the origin of products adorned with the phrase "Here Fishy, Fishy" in the minds of consumers. (b) Tim Evans

Mr. Evans was a previous owner of River Graphics' and has knowledge regarding River Graphics' use of the phrase "Here Fishy, Fishy" on clothing and hats as well as the lack of secondary meaning regarding the mark. Mr. Parsons also has information and knowledge regarding the likelihood of confusion as to the origin of products adorned with the phrase "Here Fishy, Fishy" in 17

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the minds of consumers. use of the phrase "Here Fishy, Fishy" on clothing and hats as well as the lack of secondary meaning regarding the phrase. Mr. Evans also has information and knowledge regarding the likelihood of confusion as to the origin of products adorned with the phrase "Here Fishy, Fishy" in the minds of consumers. (2) Witnesses who may be present at trial if the need arises [see id.]; and (a) Brad Butler, Fountain Valley, California

Mr. Butler has information regarding use of the subject phrase in conjunction with graphics related to the sport of fishing on t-shirts, caps, mugs and other items prior to the time first used by plaintiff. (b) David Shears

Mr. Shears has information relevant to River Graphics' production methods, design of its products and implementation of production. (c) foundation of an exhibit. b. Expert Witnesses (1) None. (2) None. Witnesses who may be present at trial [see id.]; and Witnesses who will be present at trial [see Fed. R. Civ. P. 26(a)(3)(A)]; Any witness needed for rebuttal or for the purpose of establishing the

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(3)

Witnesses whose testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony. [See Fed. R. Civ. P. 26(a)(3)(B)].

None. 7. EXHIBITS a. [List the exhibits to be offered by each party, identifying those regarding which admission is stipulated. Include in this list any summary or similar exhibits offered pursuant to Fed. R. Ev. 1006. This list should be specific enough so that other parties and the court can understand, merely by referring to the list, each separate exhibit that will be offered. General references such as "all deposition exhibits" or "all documents produced during discovery" are unacceptable. Objections to the authenticity of any exhibit will not be well taken absent the existence of good cause for believing the document inauthentic.] (1) Plaintiff(s):

See Attached Plaintiff Exhibit List (2) Defendant(s):

See Attached Defendant Exhibit List (3) None. b. Copies of listed exhibits must be provided to opposing counsel no later than five days after the Pretrial Conference. The objections contemplated by Fed.R.Civ.P. 26(a)(3) shall be filed with the clerk and served no later than 30 days before the scheduled date of the Final Trial Preparation Conference unless otherwise ordered. 8. DISCOVERY Go Pro has requested updated discovery information from River Graphics concerning sales information and advertising information. River Graphics has agreed to provide all such information. Other parties:

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River Graphics will also be requesting updated discovery. Go Pro anticipates providing such information when requested. 9. SPECIAL ISSUES Go Pro and River Graphics anticipate the filing the following motions in limine: (1) Go Pro will seek to exclude all reference to U.S. Trademark Registration No. 2,358,841 for the mark "HERE FISHY, FISHY" on the Supplemental Register. (2) River Graphics will move to exclude all reference to Go Pro's primary U.S. Trademark Registration No. 2,685,531, issued on February 11, 2003 for the mark HERE FISHY, FISHY. (3) Other motions may be filed as well. 10. SETTLEMENT Counsel for the parties do not intend to hold future settlement conferences. Go Pro stand ready to review any reasonable proposal set forth by River Graphics. 11. EFFECT OF PRETRIAL ORDER Hereafter, this Pretrial Order will control the subsequent course of this action and the trial, and may not be amended except by consent of the parties and approval by the court or by order of the court to prevent manifest injustice. The pleadings are deemed merged herein. This Pretrial Order supersedes the Scheduling and Discovery Order. In the event of ambiguity in any provision of this Pretrial Order, reference may be made to the record of the Pretrial Conference to the extent reported by stenographic notes and to the pleadings.

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12. TRIAL AND ESTIMATED TRIAL TIME/FURTHER TRIAL PREPARATION PROCEEDINGS a. b. c. Trial is to a jury and should take approximately three (3) trial days. Trial Date: _______________________. Final Trial Preparation Conference Date: __________________. In advance of this conference, the parties shall comply with the Instructions Concerning Preparation for Final Trial Preparation Conference. See Pretrial and Trial Procedures Memorandum, § V, from Senior Judge John L. Kane to Counsel. d. The parties will not be filing any motions objecting to any testimony of an expert witness. e. Deadline for filing motions in limine, including objections to exhibits and designated deposition testimony: 30 days before the scheduled date of the Final Trial Preparation Conference. Unless otherwise ordered, a written response to such a motion or objection must be filed no later than 15 days after the motion is filed, and the reply, if any, must be filed no later than 11 days after the response.

DATED this ____ day of _________________, 2006. BY THE COURT: _________________________ JOHN L. KANE, Senior Judge United States District Court

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PRETRIAL ORDER APPROVED: s/ Robert R. Brunelli Robert R. Brunelli, Esq. [email protected] Paul S. Cha, Esq. [email protected] SHERIDAN ROSS P.C. 1560 Broadway, Suite 1200 Denver, Colorado 80202-5141 Telephone: 303-863-9700 Facsimile: 303-863-0223 E-mail: [email protected] ATTORNEYS FOR PLAINTIFF GO PRO, LTD. s/ Franklin D. Patterson Franklin D. Patterson, Esq. [email protected] William P. Boyle, Esq. [email protected] PATTERSON, NUSS & SEYMOUR, P.C. 304 Inverness Way South, Suite 305 Englewood, Colorado 80112 Telephone: 303-741-4539 Facsimile: 303-741-5043 ATTORNEYS FOR DEFENDANT RIVER GRAPHICS, INC.

J:\4707\-1\PLEADINGS\Pretrial Order.final.wpd

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