estta tracking number: estta1151387 08/05/2021

ESTTA Tracking number: ESTTA1151387
BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
Proceeding 91250216
Submission Opposition/Response to Motion
Filer's Name James Bass
In the Matter of Trademark Application No. 88/312,772
Mark: TRUSCALE
JUDGMENT
Applicant, TruScale, LLC (“Applicant” or “TruScale”), pursuant to Trademark Rule
2.127(e) and Rule 56 of the Federal Rules of Civil Procedure, by and through its
undersigned counsel, respectfully submits this response to Opposer’s Motion for Summary
Judgment on Count II of its Opposition against Application Ser. No. 88/312,772 (the
“Application”) owned by Applicant, erroneously alleging that Applicant was not using the
TRUSCALE mark in commerce at least as early as of the February 22, 2019 filing date
(“Filing Date”) and that as a result the Application must be declared void ab initio. Despite
Lenovo (Beijing) Limited’s (“Opposer” or “Lenovo”) contention to the contrary,
Applicant’s evidence will show there exists genuine issues of material facts in dispute that
go to the heart of the Count II issue, and the Trademark Trial and Appeal Board should deny
Opposer’s Motion based on the facts and evidence contained herein.
LENOVO (BEIJING) LIMITED,
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LEGAL ARGUMENT AND POINTS OF AUTHORITY
Summary judgment is appropriate only where “there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). Lenovo, as the party moving for summary judgment has
the burden of demonstrating the absence of any issue of material fact. See Celotex, 477 U.S. 317
(1986); Sweats Fashions Inc. v. Pannill Knitting Co., 833 F.2d 1560, 4 U.S.P.Q.2d 1793 (Fed. Cir.
1987). As a company reportedly valued at over $45 billion (see Exhibit A), Opposer’s version of
the facts misconstrue and belittle Applicant as a startup company and draw conclusions based on
its status that lead Opposer to conclude Applicant’s sales as of the Filing Date are not sufficient to
meet the use in commerce threshold. However, as demonstrated below and through the attached
evidence, although Applicant may have been initially confused about which date should govern
its actual date of first use, it has met the requirement under the Trademark Rules of Practice and
satisfied its burden of demonstrating use in commerce on or before the Filing Date of the
TRUSCALE application.
1. The address and location of Applicant’s business has no bearing on its use
Opposer draws many unfounded inferences from the fact that Applicant is “a small
company with no employees, no physical address, no phone number.” Opposer seems to mock the
fact (or infer it is somehow evidence of the status of a non-company or lesser company) that
Applicant’s mailing address is a UPS store address. In fact, the UPS Store advertises on its website
that it can be a resource for small business owners to receive their mail safely and securely. See
Exhibit B. Also, according to its website, there are nearly 5,000 UPS Store locations throughout
the United States. See Id. This fact in and of itself is not dispositive of the quality of Applicant’s
Commissioner for Trademarks
Application No. 88/312,772
3
business or whether Applicant has any use in commerce. In fact, many well-known tech giants,
including Dell Computers and Facebook, both got their start in what Opposer would likely
characterize as less than ideal office spaces. It is widely reported that Michael Dell began his
company in his garage, while Mark Zuckerberg started Facebook in his college dormitory. It is
doubtful whether either of those two startups at that time had a listed phone number or address that
would have satisfied the Opposer’s standards, and yet, they are two very well-known brands today.
2. Contracted sales arrangements do not negate bona fide use in commerce
Opposer also tries to draw unfounded inferences from the fact that Applicant has an
arrangement with Cloud Rush, LLC (“Cloud Rush”) as a channel partner. In fact, labels aside, the
relationship between Applicant and Cloud Rush is an arrangement many startups utilize to secure
or accelerate their sales cycle. Not all startups possess in-house sales competency among their
founders. By partnering with outside companies who possess sales competency, a startup can
ensure its goods or services are successfully marketed and sold to its target consumers. Regardless
of whether the Service Agreement (“Agreement”) between TruScale and Cloud Rush is exclusive
on paper, the parties seem to have that intent. See Exhibit C: Excerpts from Deposition of
Christopher Scragg (“Scragg Depo”), 161:10-18 and Excerpts from Deposition of Matthew Norris
(“Norris Depo”), 16:13. That fact aside, the Agreement does not grant any IP or trademark rights
to Cloud Rush by operation of the sales services performed by it under the Agreement. See Exhibit
D. Moreover, according to TMEP 1201.06(a) and the cases cited therein, “a party that merely
distributes goods bearing the mark of a manufacturer or producer is neither the owner nor a related-
company user of the mark” absent a written consent from the trademark owner or an assignment
to the mark. See In re Bee Pollen from Eng. Ltd., 219 U.S.P.Q. 163 (TTAB 1983); Audioson
Vertriebs - GmbH v. Kirksaeter Audiosonics, Inc., 196 U.S.P.Q. 453 (TTAB 1977); Jean D’Albret
4
v. Henkel-Khasana G.m.b.H., 185 U.S.P.Q. 317 (TTAB 1975); In re Lettmann,183 U.S.P.Q. 369
(TTAB 1974); Bakker v. Steel Nurse of America Inc., 176 U.S.P.Q. 447 (TTAB 1972). Although
this rule applies to goods, the same rule can also be applicable to service companies.
The evidence clearly establishes that TruScale, LLC and Cloud Rush LLC are separate
entities with different owners and management. TruScale was formed in May 2018, and the
operating agreement identifies a 50/50 partnership between Mr. Scragg and Mr. Pitts. See Exhibit
E. Cloud Rush, on the other hand, is wholly owned by Mr. Norris and was formed on February 18,
2019. See Exhibit F: Norris Affidavit, Norris Depo, 33:17, 47:10-18. According to Applicant’s
Response to Opposer’s First Set of Interrogatories (“Interrogatories”), Mr. Scragg and Mr. Norris
did not even know each other at the time TruScale was formed. They were introduced by Mr.
Scragg’s younger brother. See Exhibit G: Interrogatories Response 28, Affidavit of Mr. Norris.
Opposer spends a lot of time in its brief discussing how Mr. Scragg and Mr. Pitts have
dedicated email addresses at Cloud Rush, but these facts do not support anything other than the
fact that Cloud Rush is in fact a sales arm or channel partner for Applicant. This is no different
than if Opposer’s counsel’s law firm were to second one of its associates to work in one of
Lenovo’s U.S. offices. In that case, the seconded associate would no doubt be assigned and
expected to use its assigned lenovo.com email address. In that instance, the associate would likely
not maintain any control over the nature and quality of the goods or services produced by Lenovo
and would not be any less of an employee delivering quality legal services on behalf of Opposer’s
counsel’s law firm. Similarly, many solo and small firm legal practitioners are listed as “Of
Counsel” on other law firms’ websites where their area of expertise is needed by that law firm.
That does not negate the legitimacy of their solo or small firm practice and the services they offer
thereunder. By entering into an “Of Counsel” agreement, they have another opportunity to market
5
their services through another distribution channel. This is exactly the type of relationship
TruScale and Cloud Rush have entered into with each other.
Many contractors in many different industries (but especially in the tech industry) operate
in the way in which TruScale and Cloud Rush are operating here. Those contractors are usually
provided and assigned an email address from their host company. That does not negate the
legitimacy of their own business endeavors, and it does not merge their business dealings with the
host company. Even assuming arguendo, that Cloud Rush is a sort of internal sales arm for
TruScale, this does not negate any sales of services that TruScale has made to Cloud Rush so long
as the intracompany use was meant to further additional sales. See Standard Pressed Steel Co. v.
Midwest Chrome Process Co., 183 U.S.P.Q. (BNA) 758 (TTAB 1974). Similar facts are presented
here. TruScale has provided services under the TRUSCALE mark to Cloud Rush with the intent
of Cloud Rush securing additional clients for Applicant; however, sales have slowed due to the
pandemic. See Exhibit H: Norris Depo 46:23-25.
3. Barter revenue is revenue eligible for use in commerce
Opposer also draws many unfounded inferences regarding Applicant’s use based on the
amount of barter revenue Applicant had with Cloud Rush in 2019. This is also not dispositive of
use in commerce. It is well established that good faith use of a mark in connection with the goods
and/or services is sufficient to establish use in commerce, and Applicant has demonstrated this
through the evidence and discovery already provided in this case.
Opposer characterizes Applicant’s use as “preparatory steps insufficient to establish use in
commerce.” However, this is simply not true. As outlined in the Interrogatories, Applicant
provided services in connection with the TRUSCALE mark to two clients prior to the February
22, 2019 filing date – namely to Matt Norris as an individual prior to forming Cloud Rush and to
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Cloud Rush as a corporation. See Exhibit I: Interrogatories Response 16, Scragg Depo 90:1-19.
The Board has held “an initial commercial transaction is sufficient to support the validity of a
registration so long as the initial transaction is not a sham transaction and is followed by a
continuing effort or intent to engage in commercial use.” Fort Howard Paper, 390 F.2d at 1017,
157 U.S.P.Q. at 57; Blue Bell, Inc. v. Jaymar-Ruby, Inc., 497 F.2d 433, 437, 182 U.S.P.Q. (BNA)
65, 67-68 (2d Cir. 1974). Moreover, the fact that TruScale only had one or two clients is not
significant in determining use in commerce (contrast with Christian Faith Fellowship Church v.
Adidas AG, 841 F.3d 986 (Fed. Cir. 2016) where bona fide use in commerce was found for the
sale of two hats), since Applicant made a continued effort since the filing of the Application to
market and sell its services, although admittedly throughout 2020 its efforts were hampered by the
pandemic. See Exhibit J: Scragg Depo, 19:21-25, 20:1-4. The Board has also found sales of cigars
to one customer under an exclusive sales agreement were continued use of the goods. “While
Respondent’s sales from 2010 to 2015 were admittedly slow and made virtually exclusively to one
client, nothing in the record supports a finding that such sales were not ‘bona fide use[s] of [the]
mark[s] in the ordinary course of trade,’ rather than ‘made merely to reserve a right in [the]
mark[s].’” Mombacho Cigars S.A. v. Tropical Tobacco, Inc., Cancellation No. 92062543, July 6,
2018. Similar facts are present in this case – TruScale has sold its services to two clients prior to
the Filing Date of the Application, but that does not discount the use of its mark in commerce.
In January 2019 and February 2019, Applicant reported gross sales of $2100 and $7500
respectively based on barter transactions with Cloud Rush and reported sales of 14 and 50 hours
sold respectively. See Exhibit K: Interrogatories Response 24, Scragg Depo 100:7-9. According
to the IRS, bartering is the exchange of goods or services at fair marketing value and all taxpayers
must include in their income, at the time received, the fair market value of the services received
7
from bartering. See Exhibit L. Although there is some discrepancy between the revenue listed in
the Interrogatories and in Applicant’s 2019 tax return (see Exhibit M: Interrogatories Response
24, Scragg Depo 98:9-25, 99:1-17, 100:21-25, 101:1-14), the point is, that Applicant had use in
commerce in 2019 and prior to the Filing Date of the TRUSCALE application. Applicant included
the fair market value of the services received from Cloud Rush in its 2019 taxes no matter what
the value of those sales ultimately were. See Exhibit N. The Agreement between TruScale and
Cloud Rush contains the hourly wages for each resource to be utilized by Cloud Rush from
TruScale. See Exhibit D, supra.
Conclusion
Contrary’s to Opposer’s contentions, as outlined above and supported by the evidence,
genuine issues of material facts exist. For the foregoing reasons, Opposer’s Motion for Summary
Judgment with respect to Count II should be denied.
Applicant has appointed James O. Bass, who is a member of the Bar of the State of
Georgia and whose address is Law Offices of James O. Bass, 420 Creekstone Ridge, Woodstock,
Georgia 30188, as its duly authorized agent and attorney in the matter of this Opposition, with
full power of substitution and revocation, to transact all business with the U.S. Patent and
Trademark Office and elsewhere in the United States courts in connection with this Opposition,
to sign all papers which may be hereinafter filed in connection with this Opposition, and to
receive all communications relating to this Opposition.
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The Board and opposing counsel may communicate with Applicant’s attorney by the
e-mail address noted below.
Date: August 5, 2021 Respectfully submitted, /s/ James O. Bass
TruScale LLC James O. Bass, Esq. Law Offices of James O. Bass 420 Creekstone Ridge Woodstock, GA 30188 Tel: 770-874-6464 Fax: 770-874-6465 Email: [email protected] Attorney for Applicant TruScale LLC
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above-referenced APPLICANT’S
RESPONSE TO OPPOSER’S MOTION FOR SUMMARY JUDGMENT was served this 5th day of August, 2021 on Opposer’s counsel via email at the address of record as follows:
JEFFREY A WAKOLBINGER KATTEN MUCHIN ROSENMAN LLP
525 W MONROE ST CHICAGO, IL 60661
UNITED STATES [email protected] , [email protected] , chi-
3 A. But we've been performing to this.
4 Q. Okay. So as far as you're concerned, this is
5 an active agreement between Cloud Rush and TruScale?
6 A. Yeah. In fact, I've had a conversation, you
7 know, in recent history, like in this -- within the
8 last, you know, several months about confirming our
9 exclusivity arrangement which Matt confirmed.
10 Q. Is the exclusivity actually provided for in
11 this agreement?
13 Q. You don't have another agreement between
14 TruScale and Cloud Rush. Right?
15 A. No. Yeah. Actually, I don't see -- I just did
16 a search on it. I don't see exclusivity or
17 non-exclusive either listed here, but that's certainly
18 the auspices that we're operating under.
19 Q. Did you prepare this agreement?
20 A. Yes.
21 Q. And --
22 A. Well --
25 something, yeah.
Deposition of Chris Scragg
2 provide lead generation that hopefully then
3 translates to sales for Cloud Rush that then
4 trickles down to TruScale. So it's an investment
5 they made in time in order to get to when we are
6 able to generate business. So I would say it's more
7 of, initially, a barter agreement.
8 Q. Was there any kind of formal barter
9 agreement you had?
10 A. We set up a partner agreement when we first
11 got going just kind of, if I recall -- I haven't
12 reviewed it since I signed it. But it just stated,
13 I think, kind of exclusivity and that they're our
14 go-to based on the efforts, the sweat that they put
15 into it, you know, that when we do have
16 opportunities that they're going to get looks at
17 them, especially if it's AWS, which is their
18 specialty.
20 in the affidavit. It says, "Cloud Rush continues to
21 maintain an ongoing commercial relationship with
22 TruScale." Is that still accurate today?
23 A. Yes.
25 commercial relationship between Cloud Rush and
Page 16
Deposition of Matthew Norris
Exhibit D
SERVICE AGREEMENT
This Contract for Services is made effective as of March 26, 2019, by and between Cloud Rush, LLC of 3423 Piedmont Rd. NE, Atlanta, Georgia 30305 (the "Recipient"), and TruScale, LLC of 11124 Kingston Pike, Suite 119-275, Knoxville, Tennessee 37934 (the "Provider").
1. DESCRIPTION OF SERVICES. Effective March 26, 2019, TruScale will provide to Cloud Rush the services described in the attached Exhibit at the published rates (collectively, the "Services").
2. PAYMENT. Payment shall be made to Provider per the following schedule:
Engagement Type Terms
Fixed Price Project 50% due at project start. 50% net 30 @ project end.
Hourly Run Rate Invoiced on the 1st of each month, net 30
Cloud Managed Services Out of scope for this Contract.
Cloud Rush shall pay all costs of collection, including without limitation, reasonable attorney fees. In addition to any other right or remedy provided by law, if Cloud Rush fails to pay for the Services when due, TruScale has the option to treat such failure to pay as a material breach of this Contract, and may cancel this Contract and/or seek legal remedies.
3. TERM. This Contract will remain in effect in perpetuity until either party notifies the other in writing of their intent to terminate with 60 days notice. Annually, the Exhibit and service rates may be negotiated by either party, with all other terms remaining in effect.
4. CONFIDENTIALITY. Provider, and its employees, agents, or representatives will not at any time or in any manner, either directly or indirectly, use for the personal benefit of Provider, or divulge, disclose, or communicate in any manner, any information that is proprietary to Recipient. Provider and its employees, agents, and representatives will protect such information and treat it as strictly confidential. This provision will continue to be effective after the termination of this Contract. Any oral or written waiver by Recipient of these confidentiality obligations which allows Provider to disclose Recipient's confidential information to a third party will be limited to a single occurrence tied to the specific information disclosed to the specific third party, and the confidentiality clause will continue to be in effect for all other occurrences.
Upon termination of this Contract, Provider will return to Recipient all records, notes, documentation and other items that were used, created, or controlled by Provider during the term of this Contract.
5. INDEMNIFICATION. Provider agrees to indemnify and hold Recipient harmless from all claims, losses, expenses, fees including attorney fees, costs, and judgments that may be asserted against Recipient that result from the acts or omissions of Provider and/or Provider's employees, agents, or representatives.
6. WARRANTY. Provider shall provide its services and meet its obligations under this Contract in a timely and workmanlike manner, using knowledge and recommendations for performing the services which meet generally acceptable standards in Provider's community and region, and will provide a standard of care equal to, or superior to, care used by service providers similar to Provider on similar projects.
7. DEFAULT. The occurrence of any of the following shall constitute a material default under this Contract:
a. The failure to make a required payment when due.
b. The insolvency or bankruptcy of either party.
c. The subjection of any of either party's property to any levy, seizure, general assignment for the benefit of creditors, application or sale for or by any creditor or government agency.
d. The failure to make available or deliver the Services in the time and manner provided for in this Contract.
8. REMEDIES. In addition to any and all other rights a party may have available according to law, if a party defaults by failing to substantially perform any provision, term or condition of this Contract (including without limitation the failure to make a monetary payment when due), the other party may terminate the Contract by providing written notice to the defaulting party. This notice shall describe with sufficient detail the nature of the default. The party receiving such notice shall have 30 days from the effective date of such notice to cure the default(s). Unless waived in writing by a party providing notice, the failure to cure the default(s) within such time period shall result in the automatic termination of this Contract.
9. FORCE MAJEURE. If performance of this Contract or any obligation under this Contract is prevented, restricted, or interfered with by causes beyond either party's reasonable control ("Force Majeure"), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority,
or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages or other labor disputes, or supplier failures. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non- performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
10. DISPUTE RESOLUTION. The parties will attempt to resolve any dispute arising out of or relating to this Agreement through friendly negotiations amongst the parties. If the matter is not resolved by negotiation within 30 days, the parties will resolve the dispute using the below Alternative Dispute Resolution (ADR) procedure.
Any controversies or disputes arising out of or relating to this Agreement will be resolved by binding arbitration under the rules of the American Arbitration Association. The arbitrator's award will be final, and judgment may be entered upon it by any court having proper jurisdiction.
11. ENTIRE AGREEMENT. This Contract contains the entire agreement of the parties, and there are no other promises or conditions in any other agreement, whether oral or written concerning the subject matter of this Contract. This Contract supersedes any prior written or oral agreements between the parties.
12. SEVERABILITY. If any provision of this Contract will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Contract is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.
13. AMENDMENT. This Contract may be modified or amended in writing by mutual agreement between the parties, if the writing is signed by the party obligated under the amendment.
14. GOVERNING LAW. This Contract shall be construed in accordance with the laws of the State of Tennessee.
15. NOTICE. Any notice or communication required or permitted under this Contract shall be sufficiently given if delivered in person or by certified mail, return receipt requested, to the address set forth in the opening paragraph or to such other address as one party may have furnished to the other in writing.
16. WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any provision of this Contract shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Contract.
17. ATTORNEY'S FEES TO PREVAILING PARTY. In any action arising hereunder or any separate action pertaining to the validity of this Agreement, the prevailing party shall be awarded reasonable attorney's fees and costs, both in the trial court and on appeal.
18. CONSTRUCTION AND INTERPRETATION. The rule requiring construction or interpretation against the drafter is waived. The document shall be deemed as if it were drafted by both parties in a mutual effort.
19. ASSIGNMENT. Neither party may assign or transfer this Contract without the prior written consent of the non-assigning party, which approval shall not be unreasonably withheld.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date first above written.
Service Recipient: Cloud Rush, LLC
By: ________________________________________ Matt Norris, Managing Member
Service Provider: TruScale, LLC
Resource Location Rate
Architect (Solutions, Cloud) On Shore $150.00
Data Engineer On Shore $125.00
Architect (Data) On Shore $150.00
For hourly run rate engagements, invoices will itemize each resource, # of hours and rate.
Exhibit E
Exhibit F

1 just go with Managing Partner or President, but you
2 can fill in the blank with whatever you want to call
3 it.
4 Q. What do you call it, Managing Partner or
5 President?
8 Q. And then you're managing member of the LLC,
9 right?
11 Q. Are there any other members of the legal
12 entity?
13 A. When you say members, does that mean that
14 has ownership or was involved in the legalities of
15 setting everything up?
18 Q. Do you have any business partners in Cloud
19 Rush?
20 A. When you say business partners, what do you
21 mean?
23 A. Well, in my mind business partner would
24 mean someone that has a piece of equity and
25 ownership. And if that's what you're asking, then
Page 33
1 they're familiar with. I would say five, 10 percent
2 maybe, probably five percent.
3 Q. So the hardware sales, setting up data
4 centers, on-prem business has been the bulk of what
5 Cloud Rush has been doing to date; is that right?
6 A. Uh-huh (affirmative).
8 TruScale, right?
9 A. No.
11 A. I guess it was probably February. I would
12 have to check to see when we legally did it, but I
13 would say --
14 Q. I don't need to test your memory. I'm
15 sorry. My record show you registered -- the
16 Secretary of State records show you registered the
17 business February 18, 2019. Does that sound right?
18 A. Yes, that sounds about right.
19 Q. And you got the Cloud Rush domain name just
20 a few days before that?
21 A. Uh-huh (affirmative).
22 Q. Whose idea was Cloud Rush? Was it yours?
23 A. As far as the company and the direction or
24 the name?
Page 47
24
Response: Applicant objects to this Interrogatory on the basis that it is irrelevant to
the proceedings at hand and vague. Subject to and without waiving said objection and the
objections contained herein above, Applicant responds as follows:
Name Start Date End Date
Chris Scragg May 18, 2018 Not applicable
Lance Pitts May 18, 2018 Not applicable
28. Describe all professional, personal, and familial relationships between and among
TruScale LLC, Cloud Rush LLC, Christopher Scragg, Lance Pitts, and Matthew Norris.
the proceedings at hand, vague, overly broad, and unduly burdensome. Subject to and
without waiving said objection and the objections contained herein above, Applicant
responds as follows:
Chris Scragg and Lance Pitts are colleagues from their employment with Discovery and Scripps Networks Interactive. They have known each other professionally since January 2015. In April 2018, Lance and Chris, exchanged ideas around a startup, which lead to them forming a company in May 2018, that focused on cloud computing, TruScale.
Chris Scragg and Lance Pitts, through their work together over the last 4 years, are also friends. However, as their relationship is focused more on business, they do not spend a large quantity of time together on a social level.
Chris Scragg and Matt Norris were introduced to each other through Chris’ brother, Jon Scragg. Jon Scragg and Matt Norris were colleagues from their employment at Centrics IT in Atlanta, GA. When Jon and Matt’s employment ended at Centrics IT, Matt elected to start a business over transitioning to another employer. On information and belief, Matt desired to capitalize on the market swell around cloud computing in January 2019. It is through this shared entrepreneurial alignment that Jon connected Matt with Chris.
Cloud Rush, LLC is a channel partner for TruScale, LLC.
25
TruScale, LLC is the exclusive fulfillment and service delivery arm of Cloud Rush, LLC. TruScale invoices Cloud Rush for service delivery performed for Cloud Rush customers.
In exchange for Cloud Rush molding their business model, in part, around TruScale service offerings and going to market, TruScale provides Cloud Rush, IT support, cloud managed services, Google G Suite management, marketing content, business consulting, blog postings, etc.
Chris Scragg and Matt Norris did not know each other prior January 2019. Additionally, Matt and Chris have a purely business relationship.
Lance Pitts was introduced to Matt Norris by Chris Scragg in January 2019. Additionally, Matt and Lance have a purely business relationship.
Jon Scragg is not an employee, member, director or otherwise of either, Cloud Rush or TruScale. Jon’s only involvement with TruScale and Cloud Rush, was connecting Matt and Chris, over their shared entrepreneurial vision.
Applicant has made a good-faith effort to respond to all interrogatories propounded by
Opposer. Applicant reserves the right to amend these responses at any point up to and including
the entry of any pre-trial order or hearing in this matter, as new information is identified
Respectfully submitted this 3rd day of January 2020, by:
___________________________________ James O. Bass, Attorney for Applicant Law Offices of James O. Bass 420 Creekstone Ridge Woodstock, GA 30188 770-874-6464

Exhibit H
1 yeah, he was involved, but we never -- he's not been
2 as involved as Chris, especially as time passed.
3 Q. How was Lance involved?
4 A. I think he was just a complement to Chris
5 in terms of there's many pieces of cloud. It's not
6 just the architecture piece. So he's complementary
7 to the offering that TruScale can provide.
8 Q. You had mentioned the Atlanta Tech Village
9 and your neighbor there. What is that exactly?
10 A. It's like a startup incubator.
11 Q. And is that where Cloud Rush's physical
12 office is?
13 A. Yes.
14 Q. Is Cloud Rush your sole gig right now? Are
15 you employed anywhere else or anything like that?
16 A. I'm not employed anywhere else.
17 Q. Is there anyone else that's working full
18 time with Cloud Rush, or is everybody else doing
19 this in some part-time capacity?
20 A. Ryan and Scott are full time.
21 Q. What percentage of Cloud Rush's business is
22 AWS related?
23 A. Not as much as I would like. COVID
24 obviously changed things a bit and sent us back to
25 focusing on what our salespeople's roots and what
Page 46
1 Q. Prior to the date Cloud Rush formed, what
2 services do you believe TruScale was providing I guess
3 in this case to Matt Norris? Right? Does that make
4 sense?
7 A. Well, the services are listed.
8 Q. Okay. In Row 1 of the response to Exhibit 16?
9 I mean, I'm sorry. To Interrogatory 16?
10 A. Yeah. I don't have anything to add there.
11 Q. So what's a start-up roadmap?
12 A. Start-up roadmap was that we had a board set up
13 in Trello and we're setting up -- these -- these are two
14 things -- these are critical steps that need to happen
15 in order to become a company, these are critical steps
16 that need to happen to become an Amazon web services
17 partner. So I was basically getting up a roadmap for
18 them -- for us to all execute again so that they could
19 become a company and become an AWS partner.
20 Q. Okay. You said a board set up in Trello. Is
21 that T-R-E-L-L-O?
22 A. Yeah. Yes.
23 Q. What's Trello?
24 A. Trello is a -- kind of like a combine board
25 where you can assign tasks to individual users, track
Page 90
Architect (Solutions, Cloud) On Shore $150.00
Data Engineer On Shore $125.00
Architect (Data) On Shore $150.00
15. Identify the actual prices charged for each of the goods or services provided in
connection with Applicant's Mark.
responds as follows: See response to Interrogatory 14 above.
16. Identify (by name, address, and phone number or email address) each person who
has purchased services from Applicant in connection with Applicant's Mark and identify, for each
person, (a) the date(s) on which such services were purchased, (b) the date(s) on which such
services were performed, (c) the types of services performed, and (d) the amount paid for such
services.
[email protected] 678-575-7667 Cloud Rush 3423 Piedmont Road NE Suite 589 Atlanta GA, 30305
2/19/2019 cloud consulting, domain registration, Google G Suite configuration and management
Matt Norris CEO mnorris@cloud- rush.com 678-575-7667 Cloud Rush 3423 Piedmont Road NE Suite 589 Atlanta GA, 30305
2/19/2019 Ongoing 2/19/2019 - present day
Management of public cloud infrastructure, Google G Suite management, public cloud infrastructure architecture, deployment and management
~$6,600*
Matt Norris CEO mnorris@cloud- rush.com 678-575-7667 Cloud Rush 3423 Piedmont Road NE Suite 589 Atlanta GA, 30305 Through the channel partnership between Cloud Rush and TruScale, TruScale delivered services sold to FitRadio.
3/8/2019 3/9/2019 Migrated a VMWare virtual machine from datacenter to AWS.
$500*
$10,050
14
mnorris@cloud- rush.com 678-575-7667 Cloud Rush 3423 Piedmont Road NE Suite 589 Atlanta GA, 30305 Through the channel partnership between Cloud Rush and TruScale, TruScale delivered services sold to SpendHQ.
development, cluster re- deployment
* Barter transactions. The United States Internal Revenue Service considers barter transactions taxable & reportable income.
17. Identify each launched opportunity identified m the process of Applicant becoming
a "select" AWS consulting partner.
responds as follows: Under 2018 partner requirements, “launched opportunities” are not
part of the process of becoming an AWS consulting partner at the select tier. However, the
number of certifications, accreditations and the amount influenced AWS revenue, are part
of the process.
AWS Certified Architect
AWS Certified Developer
4 Number 7, still on Exhibit 22.
5 A. Uh-huh.
6 Q. And the question to TruScale was, "For each of
7 the categories of services listed at the TruScale
8 website, identify the specific services applicants that
9 TruScale has actually provided under applicants marked
10 and the customer to whom such service was provided." So
11 I think this will get us to the answer of my last
12 question. Can you take a look at TruScale's response to
13 Interrogatory Number 7, which is presented in the form
14 of a table, and let me know if that is a complete list
15 of services TruScale has actually provided to customers
16 as of January when these interrogatories were completed?
17 A. One thing I would say about the item 21st
18 Mortgage, it says quarterly, Microsoft has to do a
19 performance tuning.
20 Q. Uh-huh.
21 A. This was included because that's what we
22 performed, but the landscape changed during Covid, and
23 so we've not yet been brought back to do additional
24 tuning, but it was agreed that they were looking to do
25 quarterly or semi-annually -- semi-annual tuning. But
Page 19
Deposition of Chris Scragg
1 at this point, we've not had a repeat of that service
2 with that customer. So it's not -- it's not an ongoing
3 thing with them right now currently, but I'm -- I
4 believe Covid is -- has some -- has had an impact there.
5 Q. Fair enough. Just so I understand. Are you
6 saying you performed SQL performance tuning once for
7 21st Mortgage --
8 A. Yes.
9 Q. -- with the intention of it being quarterly,
10 but -- but the repeat nature of the services did not
11 come to bear yet?
12 A. Not to bear yet. We still meet with them on a
13 fairly regular basis. But, yeah. We've not -- we've
14 not executed an additional tuning session yet.
15 Q. Okay. So when was the session you did do?
16 A. I don't have that available in front of me.
17 It's been a couple of years. Right? Since I developed
18 this response.
19 Q. Well, it hasn't been a couple of years. It may
20 seem like it because of Covid, but this is January 2020.
21 A. Fair. Okay.
23 Twenty -- you know, definitely 2019. Right?
24 A. It was -- yeah. It was definitely 2019. Yes.
25 2019.
Page 20
1 revenue, cost of goods sold, gross profit margin for
2 such goods or services by month from the date of first
3 sale to the present." And, again, we discussed TruScale
4 doesn't sell goods, it was only offering services.
5 Correct?
7 Q. So the unit column, is that indicative of
8 hours?
9 A. Hours. Yes.
10 Q. Okay. So it seems like perhaps this would be
11 another kind of form of presenting the information we
12 were just talking about with regard to TruScale's
13 response to Interrogatory 16. Would you agree?
14 A. It appears to be, yes.
15 Q. For example, second to last row, we've got
16 Cloud Rush, SpendHQ and there's that same amount flushed
17 out here. I guess you put 67 hours into the project or
18 your subcontractors did and got paid $10,050; is that
19 right?
22 double-check my math, but I think we're at around
23 $46,000 here. So we've got three different amounts of
24 total revenue for 2019, $20,150 in response to
25 Interrogatory 16 for all the services that TruScale
Page 100
(VMWare, Microsoft Hyper-V) Large hardware maintenance
contracts Publicly disclosed modernization
initiatives Changes in executive leadership
24. Identify, for each good and service ever offered under Applicant's Mark in the
United States, the number of units sold, gross sales revenue, cost of goods sold, and gross profit
margin (in U.S. dollars) for such good or service, by month, from the date of the first sale to the
present.
14 $2,100 *
February 2019
Cloud Rush
consulting, deliverable production, DNS management, G Suite Launch, website and brand consulting, cloud managed services
March 2019 Cloud Rush (FitRadio)
VMWare virtual machine migration to the AWS (cloud).
Cloud Rush
APN partner development, cloud and business consulting, cloud managed services
40 $6,000 *
April 2019 Cloud Rush
Cloud and business consulting, AWS account instantiation, Route 53 config, cloud managed services
15 $2,250 *
27 $4,050 *
12 $1,800 *
24 $3,600 *
August 2019
Cloud Rush
18 $2,700 *
September 2019
Cloud Rush
Cloud and business consulting, cloud managed services, pre-sales support, SEO meetings, document production
30 $4,500 *
October 2019
67 $10,050 $780 92%
* The United States Internal Revenue Service considers barter transactions taxable & reportable income.
25. Identify all past and present members of TruScale LLC.
the proceedings at hand. Subject to and without waiving said objection and the objections
contained herein above, Applicant responds as follows:
Chris Scragg, Managing Member
Lance Pitts, Managing Member
26. Identify all past and present officers of TruScale LLC and provide a description of
each officer's responsibilities in connection with TruScale LLC.
Name Role Responsibilities
Chris Scragg Managing Member See Exhibit 1: TruScale, LLC Operating Agreement
Lance Pitts Managing Member See Exhibit 1: TruScale, LLC Operating Agreement
27. Identify all past and present employees of TruScale LLC and the dates of each
employee's employment.
Exhibit L

!!! "

!!! "
Exhibit M
1 marketplace.
2 Q. Okay. And I realize this has been the only
3 deal you've had for cash payment so far with --
4 involving Cloud Rush, but is that -- that kind of
5 structure how you envision the relationship playing out
6 on other projects as well?
7 A. Yes. That's how I envisioned it with Cloud
8 Rush, yeah.
9 Q. Okay. So the -- the numbers here for 2019 add
10 up to I think about $20,000, $20,150 which is a lot less
11 than the 86,000 you reported for your 2019 taxes. Do
12 you know why or what would be missing from this list
13 we're looking at?
14 A. Well, there's a lot of -- well, for one thing,
15 for example, Line Item Number -- you know, looking in
16 that where it says -- that 6,600 number, that was 2/19
17 to present --
19 in Exhibit 22, response to Interrogatory 16, the second
20 row of the table. Right?
21 A. Right. Page 13.
22 Q. Okay. I see that, $6,600.
23 A. So $6,600, that was 2/19 through present day,
24 whenever that date was that I drafted this table was not
25 included as the rest of the year. So there were
Page 98
1 services -- this documents going to looks like 10/29 --
2 yeah. This didn't -- you know, between the end --
3 between -- by the end of the year, we had accumulated --
4 accumulated more.
6 interrogatories at the beginning of January 2020.
7 A. Yeah. I have to go back and take a look and
8 see how it was calculated.
9 Q. That's a $6,600 difference there which is a --
10 A. A substantial.
11 Q. -- a substantial one, yeah. So as you sit here
12 right now, you don't know why the total from your
13 response to Interrogatory 16 would be different than
14 what was reported on your taxes?
15 A. What was reported on my taxes, I can say was
16 backed by actual transactions as well. I'm not sure
17 what the discrepancy is here. I can't recall.
18 Q. Okay. Let's look at Interrogatory Number 9
19 please from the same document, Exhibit 22. I'm sorry.
20 Wrong one. Interrogatory 24 in Exhibit 22. Another
21 table. Let me know when you're there.
22 A. Okay.
23 Q. So the question here from Lenovo was, "Identify
24 for each good and service ever offered under applicant's
25 mark in the U.S. the number of units sold, gross sales
Page 99
1 revenue, cost of goods sold, gross profit margin for
2 such goods or services by month from the date of first
3 sale to the present." And, again, we discussed TruScale
4 doesn't sell goods, it was only offering services.
5 Correct?
7 Q. So the unit column, is that indicative of
8 hours?
9 A. Hours. Yes.
10 Q. Okay. So it seems like perhaps this would be
11 another kind of form of presenting the information we
12 were just talking about with regard to TruScale's
13 response to Interrogatory 16. Would you agree?
14 A. It appears to be, yes.
15 Q. For example, second to last row, we've got
16 Cloud Rush, SpendHQ and there's that same amount flushed
17 out here. I guess you put 67 hours into the project or
18 your subcontractors did and got paid $10,050; is that
19 right?
22 double-check my math, but I think we're at around
23 $46,000 here. So we've got three different amounts of
24 total revenue for 2019, $20,150 in response to
25 Interrogatory 16 for all the services that TruScale
Page 100
1 provided in 2019. For the response to Interrogatory 24,
2 Interrogatory 24, it's $46,350, and then on the 2019 tax
3 return, it's $86,151. Do you have any idea why those
4 three amounts are so different?
5 A. My best inclination here is going to be that
6 there was a sharpening of the pencil in this particular
7 table here. I've got specific hours now associated with
8 each of these whereas before were generalizations of
9 those services and the amount of time spent on them.
10 I'm still kind of at a lost of why or what the -- what
11 the difference between this is and our tax forms. I'd
12 actually have to go back and look and see what I
13 provided to the CPA. It could've been on his end. I
14 don't know.
15 Q. Okay. I may ask you to do that at some point
16 later, but I assume that answer is not going to come to
17 you as you're sitting here today. Right?
18 A. True.
20 Interrogatory Number 9 please in Exhibit 22. No dollar
21 amounts on this one.
22 A. Twenty-two, okay.
23 Q. So the question here from Lenovo was, for each
24 service, identified in the TruScale trademark
25 application we were talking earlier and that we looked
Page 101
(VMWare, Microsoft Hyper-V) Large hardware maintenance
contracts Publicly disclosed modernization
initiatives Changes in executive leadership
24. Identify, for each good and service ever offered under Applicant's Mark in the
United States, the number of units sold, gross sales revenue, cost of goods sold, and gross profit
margin (in U.S. dollars) for such good or service, by month, from the date of the first sale to the
present.
14 $2,100 *
February 2019
Cloud Rush
consulting, deliverable production, DNS management, G Suite Launch, website and brand consulting, cloud managed services
March 2019 Cloud Rush (FitRadio)
VMWare virtual machine migration to the AWS (cloud). Cloud Rush
APN partner development, cloud and business consulting, cloud managed services
40 $6,000 *
April 2019 Cloud Rush
Cloud and business consulting, AWS account instantiation, Route 53 config, cloud managed services
15 $2,250 *
27 $4,050 *
12 $1,800 *
24 $3,600 *
August 2019
Cloud Rush
18 $2,700 *
September 2019
Cloud Rush
Cloud and business consulting, cloud managed services, pre-sales support, SEO meetings, document production
30 $4,500 *
October 2019
67 $10,050 $780 92%
* The United States Internal Revenue Service considers barter transactions taxable & reportable income.
25. Identify all past and present members of TruScale LLC.
Chris Scragg, Managing Member
Lance Pitts, Managing Member
26. Identify all past and present officers of TruScale LLC and provide a description of
each officer's responsibilities in connection with TruScale LLC.
Name Role Responsibilities
Chris Scragg Managing Member See Exhibit 1: TruScale, LLC Operating Agreement
Lance Pitts Managing Member See Exhibit 1: TruScale, LLC Operating Agreement
27. Identify all past and present employees of TruScale LLC and the dates of each
employee's employment.
Exhibit N

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