UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

DEFENDANT'S RESPONSES TO PLAINTIFFS'

AMENDED FIRST REQUESTS FOR ADMISSIONS

 Now comes the Defendant, Wolfe's Borough Coffee, Inc. and responds to the Plaintiffs' Amended First Requests for Admissions as follows:

       1.       Admit that Black Bear was aware of the existence of Starbucks at the time Black Bear began manufacturing and selling a blend of roasted coffee under the name "Charbucks Blend."

       Response.    Admitted.

       2.      Admit that Black Bear was aware of the existence of the Starbucks Mark at the time Black Bear began manufacturing and selling a blend of roasted coffee under the name "Charbucks Blend."

       Response.    Admitted.

       3.       Admit that Starbucks' trademark registrations attached as Exhibit A to the Complaint are valid.

       Response.    Admitted.

       4.      Admit that the Starbucks Mark became a valid trademark before Black Bear began manufacturing and selling a blend of roasted coffee under the name "Charbucks Blend."

        Response.    Admitted.

        5.       Admit that the Starbucks Mark is "famous" within the meaning of the Federal Trademark Dilution Act, 15 U.S.C. §§ 1125(c) and 1127.

        Response.    Objection. This request asks that the Defendant draw a legal conclusion   and is not a matter within the scope of Rule 26(b)(l) of the Federal Rules of Civil Procedure. Accordingly, this is not a proper request for admission and the Defendant objects thereto.

        6.      Admit that the Starbucks Mark became "famous" within the meaning of the Federal Trademark Dilution Act, 15 U.S.C. §§ 1125(c) and 1127, before Black Bear began manufacturing and selling a blend of roasted coffee under the name "Charbucks Blend."

        Response.    Objection. This request asks that the Defendant draw a legal conclusion and is not a matter within the scope of Rule 26(b)(l) of the Federal Rules of Civil Procedure. Accordingly, this is not a proper request for admission and the Defendant objects thereto.

        7.      Admit that, no later than August 1997, Black Bear was informed by Starbucks that Black Bear's use of the name "Charbucks Blend" had created and would continue to create confusion among consumers that Black Bear's product is affiliated with or sponsored by Starbucks.

        Response.    The Defendant admits that on or about August of 1997 it was contacted by Starbucks and was advised that Starbucks objected to its use of the term "Charbucks" as disparaging and dilutive of the Starbucks trademark. The remaining allegations of this request are denied.

        8.       Admit that after August 1997, Black Bear has manufactured and sold a blend of roasted coffee under the name "Charbucks Blend" with knowledge that Starbucks claimed such actions to infringe and dilute the Starbucks Mark.

        Response.    Admitted.

        9.       Admit that Black Bear's use of the name "Charbucks" causes consumers who  hear or read that name to think of Starbucks.

        Response.    The Defendant has made reasonable inquiry and the information known or readily obtainable by it is insufficient to enable the Defendant to admit or deny this request as it seeks the subjective impressions of unknown third parties.

10.     Admit that Black Bear uses the "Charbucks" name to identify a product that Black Bear offers for sale to the public.

        Response.    The Defendant admits that it uses the name "Mister Charbucks" to identify a product that it offers for sale to the public. The remaining allegations of this request are denied

        11.     Admit that Black Bear manufactures and sells a blend of roasted coffee under  the "Charbucks" name.

        Response.    The Defendant admits that it manufactures and sells a blend of roasted coffee under the name "Mister Charbucks."   The remaining allegations of this request are denied.

        12.     Admit that in February 1997, Black Bear developed a dark roasted blend of coffee that it named "Charbucks Blend."

        Response.    Admitted.

        13.     Admit that Black's Bear's "Charbucks Blend" coffee was first sold to customers on or about February 24, 1997.

        Response.    Denied. Answering further, the Defendant admits that it first sold and shipped coffee under the name "Charbucks Blend" to a customer on April 7, 1997.

        14.     Admit the name "Charbucks" conjures up the image of charred coffee beans.

        Response.    The Defendant has made reasonable inquiry and the information known or readily obtainable by it is insufficient to enable the Defendant to admit or deny this request as it seeks the subjective impressions of unknown third parties.  Answering further, the Defendant admits that its officers and/or agents have opined that the name "Charbucks" conjures up the image of charred beans.

        15.     Admit that the "Charbucks" name rhymes with Starbucks.

        Response.    Admitted.

        16.     Admit that the Starbucks Mark is held in high regard by consumers.

        Response.    The Defendant has made reasonable inquiry and the information known or readily obtainable by it is insufficient to enable the Defendant to admit or deny this request as it seeks the subjective impressions of unknown third parties. Answering further, the Defendant admits that its officers and/or agents have opined that the Starbucks Mark is held in high regard by consumers.

        17.     Admit that the use of the word "char" in the "Charbucks" name has obvious negative connotations.

        Response.    The Defendant has made reasonable inquiry and the information known or readily obtainable by it is insufficient to enable the Defendant to admit or deny this request as it seeks the subjective impressions of unknown third parties. Answering further, the Defendant admits that its officers and/or agents have opined that the word "char" in the "Charbucks" name

Respectfully submitted,

Counsel for the Defendant,

110 Cedar Street, Suite 250

Wellesley Hills, MA 02481

(781) 237-0033