DIRECT EXAMINATION OF FRED TOMAS Q: PLEASE STATE YOUR NAME FOR THE RECORD. I AM A PROFESSIONAL SOCCER PLAYER. I CURRENTLY PLAY FOR THE CHICAGO BLAZE.

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1 BY PLAINTIFF COUNSEL: DIRECT EXAMINATION OF FRED TOMAS Q: PLEASE STATE YOUR NAME FOR THE RECORD. FRED TOMAS. Q: WHERE DO YOU RESIDE? CHICAGO, ILLINOIS. Q: WHAT IS YOUR PROFESSION? I AM A PROFESSIONAL SOCCER PLAYER. I CURRENTLY PLAY FOR THE CHICAGO BLAZE. Q: DESCRIBE THE CHICAGO BLAZE. THE TEAM IS HEAD-QUARTERED IN THE LINCOLN PARK NEIGHBORHOOD OF CHICAGO AND PLAYS ITS MATCHES AT FORD PARK. OUR COLORS ARE RED AND BLACK, AND WE HAVE A FIREMAN AS OUR MASCOT A REFERENCE TO THE 1871 GREAT CHICAGO FIRE. FOUNDED IN 1993, WE ARE ONE OF THE ORIGINAL 10 MEMBERS OF MAJOR LEAGUE SOCCER, THE TOP SOCCER LEAGUE IN NORTH AMERICA. IN 1993, THE LEAGUE EXPANDED TO INCLUDE 20 TEAMS. THE LEAGUE IS DIVIDED INTO TWO CONFERENCES: EAST AND WEST. EACH CONFERENCE HAS TEN TEAMS. CHICAGO PLAYS IN THE EASTERN CONFERENCE. WE HAVE NEVER FINISHED IN THE BOTTOM HALF OF THE CONFERENCE. THE LAST FOUR YEARS, WE VE WON THE WORLD CHAMPIONSHIP OF MAJOR LEAGUE SOCCER BY DEFEATING THE TOP TEAM IN THE WESTERN CONFERENCE. Q: WHEN DID YOU JOIN THE CHICAGO BLAZE? I JOINED THE BLAZE IN 2010, THE SAME YEAR I TURNED PROFESSIONAL. Q: AND WHAT IS YOUR ROLE WITH THE TEAM? I AM A STRIKER. I HAVE THE QUICKEST FEET ON THE TEAM, IF NOT IN MAJOR LEAGUE SOCCER. I M KNOWN FOR MY ABILITY TO SPEED PAST DEFENDERS AND SCORE GOALS FROM ANY POSITION ON THE FIELD, INCLUDING WHILE TAKING CORNER AND FREE KICKS.

2 Q: WHAT IS IT THAT ALLOWS YOU TO SCORE GOALS FROM ANY POSITION ON THE FIELD? I HAVE THE ABILITY TO CUT OR SLICE THE BALL WHEN KICKING IT.THIS IMPARTS A SPIN ON THE SHOT, WHICH CAUSES THE BALL TRAJECTORY TO CURVE. THE RESULT IS THAT GOALIES ARE CONFUSED BECAUSE THEY CAN T PREDICT WHERE AND WHEN THE BALL WILL CURVE. ONLY I KNOW WHERE THE BALL WILL GO. Q: CAN ANYONE ELSE IN MAJOR LEAGUE SOCCER KICK THE BALL LIKE YOU? NO. NOT EVEN DAVID BECKHAM, WHO WAS KNOWN FOR BENDING HIS SHOTS, COULD KICK THE BALL LIKE I CAN. Q: HAVE YOU RECEIVED ANY RECOGNITION FOR YOUR SCORING ABILITY? YES. SPORTS ILLUSTRATED, THE TOP U.S. SPORTING MAGAZINE, FEATURED AN ARTICLE ABOUT ME DURING MY ROOKIE SEASON AND CALLED ME THE BIG SPIN. THAT NAME REFERS TO THE SPIN THAT I PUT ON THE BALL WHEN SHOOTING ON GOAL. THE NICKNAME STUCK AND EVERYONE CALLS ME THE BIG SPIN. EVEN I REFER TO MYSELF AS THE BIG SPIN. Q: HAVE YOU RECEIVED ANY OTHER ACCOLADES? YES, I VE WON THE GOLDEN SHOE AWARD FOR THE MOST VALUABLE PLAYER IN MAJOR LEAGUE SOCCER THE LAST FOUR YEARS. AND, MANY SPORTS COMMENTATORS HAVE SUGGESTED THAT I WILL OVERCOME LIONEL MESSI AS THE MOST DOMINANT SOCCER PLAYER IN THE WORLD IN THE NEXT 2 YEARS. THEY SAY THAT MY POPULARITY AND SKILL MAY BRING THE 2018 FIFA WORLD CUP TO THE USA. Q: WHAT DO YOU MEAN BY BRING THE FIFA WORLD CUP TO THE USA? I MEAN THAT FIFA, THE GLOBAL GOVERNING BODY OF SOCCER, MAY CHOOSE THE UNITED STATES AS THE HOST COUNTRY FOR THE 2018 WORLD CUP. AND THAT S A REALLY BIG DEAL BECAUSE THE UNITED STATES HAS NOT HOSTED THE WORLD CUP SINCE

3 Q: WHAT IS THE WORLD CUP? IT S THE INTERNATIONAL SOCCER CHAMPIONSHIP COMPETITION CONTESTED BY QUALIFIED TEAMS FROM VARIOUS COUNTRIES. IT S PLAYED EVERY FOUR YEARS. EVERY PROFESSIONAL SOCCER PLAYER IN THE WORLD WANTS TO REPRESENT THEIR HOME COUNTRY IN THE WORLD CUP. BUBBLE TEA Q: ARE YOU KNOWN FOR ANYTHING ELSE? YES. I M KNOWN FOR DRINKING LOTS OF BUBBLE-TEA. Q: WHY IS THAT? BECAUSE OF MY REPUTATION AS A PROFESSIONAL ATHLETE, I ATTRACT ATTENTION FROM YOUNG WOMEN, SOCCER FANS, AND YOUNG ATHLETES. THE SPORTING PRESS AND THE PAPARAZZI PHOTOGRAPH ME ALL THE TIME, ALL OVER TOWN AND WHENEVER I TRAVEL. I VE BEEN PHOTOGRAPHED DRINKING MY FAVORITE DRINK BUBBLE-TEA COUNTLESS TIMES BOTH HERE IN CHICAGO AND THROUGHOUT THE WORLD. I VE EVEN BEEN INTERVIEWED ABOUT IT AND THE FREQUENCY WITH WHICH I DRINK BUBBLE-TEA. Q: HOW FREQUENTLY DO YOU DRINK BUBBLE-TEA? ALL THE TIME. I LOVE IT. I DRINK AT LEAST THREE CUPS A DAY. Q: THAT S A LOT OF BUBBLE-TEA. HAS THIS IMPACTED YOUR REPUTATION IN ANY WAY? A LITTLE BIT. SOME CONSUMER HEALTH GROUPS HAVE CRITICIZED MY BUBBLE-TEA HABIT AS UNHEALTHY AND AS SETTING A BAD EXAMPLE FOR YOUNG PEOPLE. Q: WHY IS THAT? THE DRINK IS TEA WITH MILK OR FRUIT SMOOTHIE PLUS TAPIOCA BALLS. IT TASTES GREAT BECAUSE ITS HIGH IN SUGAR. SOME PEOPLE HAVE BLAMED BUBBLE-TEA AS CONTRIBUTING TOWARD OBESITY IN SOCIETY DUE TO ITS SUGAR CONTENT AND LOW NUTRITIONAL VALUE. 3

4 Q: DO YOU AGREE WITH YOUR CRITICS WHO SAY YOU RE A BAD ROLE MODEL BECAUSE YOU DRINK BUBBLE-TEA? ABSOLUTELY NOT. I WORK OUT EVERY DAY. OFTEN TIMES FOR HOURS AT A TIME. I RUN AT LEAST 8 MILES A DAY IN PRACTICE AND IN SOCCER GAMES. BECAUSE OF THE STRESS THAT I PUT ON MY BODY, I REQUIRE MORE CARBOHYDRATES, SUCH AS SUGARS, THAN THE AVERAGE PERSON. CARBOHYDRATES ARE LIKE FUEL. THEY INCREASE ENDURANCE AND DELAY FATIGUE. WHILE TOO MANY CARBOHYDRATES AND SUGARS MAY BE UNHEALTHY FOR THE AVERAGE PERSON, I AM A PROFESSIONAL ATHLETE AND HAVE DIFFERENT DIETARY NEEDS. OBJECTION RELEVANCE? Q: DO YOU OWN ANY INTELLECTUAL PROPERTY RIGHTS THAT COVER OR PROTECT BUBBLE-TEA? YES, I DO. I OWN THE CHINESE TRADEMARK REGISTRATION FOR THE MARK BIG SPIN FOR USE IN CONNECTION WITH NON- ALCOHOLIC BEVERAGES, IN PARTICULAR BUBBLE-TEA. Q: HOW DID YOU ACQUIRE THIS TRADEMARK REGISTRATION? AFTER MY FIRST SEASON WITH THE CHICAGO BLAZE, I TRAVELLED TO BEIJING TO VISIT WITH MY CHINESE SOCCER FANS AS PART OF A GOODWILL TOUR. MY PUBLICIST SCHEDULED THE TRIP IMMEDIATELY AFTER I HELPED THE BLAZE WIN THE WORLD CHAMPIONSHIP IN AFTER SPENDING TIME IN CHINA WITH MY FANS I WAS EXCITED TO SEE THAT BUBBLE-TEA WAS JUST AS POPULAR IN BEIJING AS IT WAS IN CHICAGO. I FIGURED I SHOULD GET INTO THE CHINESE BUBBLE-TEA BUSINESS. SO I FILED A TRADEMARK APPLICATION IN CHINA IN 2010 TO PROTECT MY FAMOUS NICKNAME FOR USE IN CONNECTION WITH BUBBLE TEA AND STARTED A BUSINESS SELLING BUBBLE TEA UNDER THE MARK BIG SPIN. BY DEFENDANT S COUNSEL: OBJECTION AS TO NICKNAME BEING FAMOUS. MR. TOMAS IS NOT A QUALIFIED EXPERT AND ITS UNCLEAR WHICH MARKET MR. TOMAS IS REFERRING TO. By JUDGE KENNELLY: 4

5 SUSTAINED. THE JURY SHALL DISREGARD THE TESTIMONY REGARDING THE NICKNAME BEING FAMOUS. BY PLAINTIFF S COUNSEL: Q: DID THE CHINESE TRADEMARK APPLICATION ISSUE AS A REGISTRATION? YES. IT ISSUED IN Q: HAVE YOU TRAVELLED TO CHINA SINCE 2010? YES. I TRAVELLED TO BEIJING AND SHANGHAI IN 2014 AFTER WINNING MY FOURTH WORLD CHAMPIONSHIP WITH THE CHICAGO BLAZE. Q: AND WHY DID YOU RETURN IN 2014? MY PUBLICIST SET IT UP AS A REUNION GOODWILL TOUR. IT S IMPORTANT TO CONNECT WITH MY CHINESE FANS BECAUSE THE CHINESE MARKET IS THE FASTEST GROWING SOCCER MARKET IN THE WORLD. AND, I REALLY ENJOY VISITING CHINA AND I LOVE MY FANS. I ALSO WANTED TO CHECK ON MY BIG SPIN BUBBLE TEA COMPANY. Q: WHAT DID YOU LEARN ABOUT YOUR COMPANY? I M WINNING. MY TEA IS ALL OVER CHINA. IT S FANTASTIC. OBJECTION AS TO WINNING ; LACKS FOUNDATION Q: IS YOUR BIG SPIN MARK FOR USE IN CONNECTION WITH TEA FAMOUS IN CHINA? BY DEFENDANT S COUNSEL: OBJECTION. INAPPROPRIATE OPINION TESTIMONY BY A NON-QUALIFIED FACT WITNESS. SUSTAINED. BY PLAINTIFF S COUNSEL: Q: IS YOUR BIG SPIN MARK WELL-KNOWN IN CHINA? 5

6 BY DEFENDANT S COUNSEL: SAME OBJECTION. SUSTAINED. BY PLAINTIFF S COUNSEL: Q: AS A BUSINESS OWNER, DO YOU HAVE AN UNDERSTANDING AS TO YOUR COMPANY S MARKET SHARE IN THE TEA INDUSTRY IN CHINA? YES. Q: WHAT IS THAT UNDERSTANDING BASED ON? A: EXPLAIN Q: WHAT IS YOUR MARKET SHARE OF THE CHINESE TEA INDUSTRY? BY VOLUME, WE ARE AND HAVE BEEN 4 TH IN MARKET SHARE BEHIND NESTLED, BLACK BULL, AND TRE-PRESIDENT GROUP. Q: YOUR HONOR, PERMISSION TO APPROACH THE WITNESS WITH PLAINTIFF S EXHIBIT 1, A CONTAINER? GRANTED. BY PLAINTIFF S COUNSEL: [HAND PTX 1 TO TOMAS] Q: SIR, DO YOU RECOGNIZE EXHIBIT 1? YES. Q: TELL THE JURY WHAT YOU RE LOOKING AT. THIS IS THE CUP THAT MY COMPANY USES TO SELL BUBBLE-TEA IN CHINA. Q: YOUR HONOR, PERMISSION TO PUBLISH EXHIBIT 1 TO THE JURY? 6

7 COUNSEL, ANY OBJECTION? BY DEFENDANT S COUNSEL: NO OBJECTION, YOUR HONOR. THERE BEING NO OBJECTION, THE EXHIBIT MAY BE PUBLISHED. BY PLAINTIFF S COUNSEL: [WALK PAST JURY WITH PTX 1 AND RETURN TO TOMAS] Q: SIR, HAS YOUR BUBBLE-TEA COMPANY EVER VARIED THE SIZE OF THE CUP? THERE ARE DIFFERENT SIZES: SMALL, MEDIUM, AND LARGE. Q: THERE IS A LOGO ON THE CUP IN EXHIBIT 1. DO YOU RECOGNIZE THAT LOGO? YES, THAT LOGO IS MY BIG SPIN LOGO. IT SAYS BIG SPIN, THAT S MY NICKNAME, AND INCLUDES A CLOCKWISE ARROW. Q: DO ALL OF YOUR TEA CUPS HAVE THIS LOGO? YES. THE LOGO HAS NEVER CHANGED. Q: LET S GET A BIGGER LOOK OF THAT LOGO. SIR, PLEASE TURN TO PLAINTIFF S EXHIBIT 2. DO YOU RECOGNIZE THIS PHOTOGRAPH? YES. IT IS A PICTURE OF THE CUP THAT WE WERE JUST LOOKING AT. Q: I MOVE TO ADMIT PLAINTIFF S EXHIBIT 2 AND PUBLISH IT TO THE JURY? ANY OBJECTION? BY DEFENDANT S COUNSEL: 7

8 NO OBJECTION. YOU MAY PUBLISH THE DEMONSTRATIVE EXHIBIT. 8

9 BY PLAINTIFF S COUNSEL: [PUBLISH PTX 2 ON SCREEN] Q: SIR, IS THE LOGO ON THIS IMAGE THE SAME AS THE IMAGE WE WERE JUST LOOKING AT ON THE CUP WE IDENTIFIED AS PLAINTIFF S EXHIBIT 1? YES. Q: [POINTING TO SCREEN] AND THIS IS YOUR NICKNAME BIG SPIN? CORRECT. Q: [POINTING TO SCREEN] AND THIS IS THE CLOCKWISE ARROW? CORRECT. Q: HAS YOUR COMPANY EVER SOLD BUBBLE TEA IN CHINA UNDER A DIFFERENT NAME OR MARK? NO. Q: SO YOU VE USED THIS MARK TO SELL BUBBLE-TEA SINCE 2010 IN CHINA? YES. [INSTRUCT WITNESS TO PUT AWAY PTX 1 AND REMOVE PTX 2 FROM SCREEN] SOCIAL MEDIA&OVERSHIELD Q: SIR, I WANT TO CHANGE GEARS A BIT HERE AND TALK ABOUT SOCIAL MEDIA. ARE YOU FAMILIAR WITH THE CONCEPT OF SOCIAL MEDIA? YOU MEAN, LIKE TWITTER? Q: EXACTLY. TWITTER. ARE YOU FAMILIAR WITH TWITTER? YES. 9

10 Q: WHAT IS TWITTER? IT S AN ONLINE SOCIAL NETWORKING SERVICE THAT ENABLE USERS TO SEND AND RECEIVE SHORT MESSAGES CALLED TWEETS. REGISTERED USERS CAN CHOOSE TO FOLLOW OTHER USERS, WHICH MEANS THAT THEY WILL SEE ALL OF THE TWEETS OF THE USER THEY ARE FOLLOWING. IN A TWEET, A USER S MESSAGE CAN BE CATEGORIZED BY WORDS OR PHRASES THAT IMMEDIATELY FOLLOW A HASH TAG. SO I MIGHT TWEET A MESSAGE THAT I M IN COURT TODAY AND USE THE PHRASE #PROTECTINGMYRIGHTS. BY USING THE PHRASE #PROTECTINGMYRIGHTS I VE TAGGED OR CATEGORIZED MY MESSAGE AS BEING ASSOCIATED WITH A TOPIC I VE CREATED CALLED PROTECTING MY RIGHTS. OTHER PEOPLE CAN THEN EASILY SEARCH FOR MY MESSAGE. Q: ARE YOU A REGISTERED TWITTER USER? YES, I AM. SINCE 2010, MY USERNAME HAS BEEN BIGSPIN. Q. DO YOU HAVE ANY FOLLOWERS? YES, I HAVE MORE THAN 250,000 FANS THAT FOLLOW ME ON TWITTER. Q: AND HOW DO YOU USE TWITTER? I USE IT TO SEND MESSAGES TO MY FANS ALL OVER THE WORLD, BUT PRIMARILY IN THE UNITED STATES. I KEEP THEM ABREAST OF WHAT I M DOING, HOW I M PLAYING SOCCER, AND MY INTERESTS. I REALLY ENJOY TWEETING ABOUT THE RESTAURANTS THAT I VISIT IN CHICAGO. I M WHAT THEY CALL A BIG FOODIE. Q: HOW MANY TIMES HAVE YOU TWEETED UNDER THE USER NAME BIGSPIN? TOO MANY TO COUNT. AT LEAST FIVE TIMES A WEEK SINCE Q: DO YOU CONSIDER YOUR USER NAME A TRADEMARK? OF COURSE. I PROVIDE THE SERVICE OF PROVIDING FIRST HAND INFORMATION ABOUT FRED TOMAS, THE CHICAGO SOCCER SUPERSTAR, TO ALL OF MY FANS WORLDWIDE. 10

11 Q: DID YOU USE TWITTER TO KEEP YOUR FANS UPDATED ABOUT YOUR RECENT TRAVELS TO CHINA? YES, I DID. Q: TELL THE JURY ABOUT THE CIRCUMSTANCES OF THOSE TWEETS. WELL, TWITTER IS NOT AVAILABLE IN CHINA, BUT WHEN I RETURNED TO THE UNITED STATES, I TWEETED SOME MESSAGES ABOUT MY TRAVELS TO CHINA AND I ENDED THE TWEETS WITH #BIGSPIN. Q: WHY DID YOU END YOUR TWEETS WITH #BIGSPIN? TO TAG OR CATEGORIZE MY MESSAGES AS BEING ASSOCIATED WITH ME, THE BIG SPIN PROFESSIONAL SOCCER PLAYER. Q: DID ANYONE RESPOND TO THOSE TWEETS? YES, OVERSHIELD DID. Q: WHO IS OVERSHIELD? THEY ARE AN INTERNATIONAL SPORTING GOODS AND APPAREL COMPANY. THEY SELL A VARIETY OF GOODS INCLUDING SOCCER EQUIPMENT AND SHOES. Q: WHAT DID OVERSHIELD DO? OVERSHIELD RE-TWEETED MY #BIGSPIN IN CHINA TWEET TO ALL OF ITS FOLLOWERS AND THEN BLASTED A SPONSORED TWEET, ALSO CALLED A PROMOTED TWEET TO CERTAIN USERS. THE SPONSORED TWEET SAID HOW DO YOU SPIN? SEE #BIGSPIN IN CHINA AND CHECK OUT THE NEW LINE OF FOOTBALL SHOES #BIGSPIN. Q: SIR, PLEASE TURN TO PLAINTIFF S EXHIBIT 3 IN YOUR BINDER. DO YOU RECOGNIZE THIS DOCUMENT? I VE NEVER SEEN THIS BEFORE, BUT IT ACCURATELY REFLECTS THE CONTENT OF OVERSHIELD S RE-TWEETED MESSAGE AND ITS PROMOTED TWEET MESSAGE. 11

12 Q: JUDGE, PERMISSION TO PUBLISH TO THE JURY? ANY OBJECTIONS? BY DEFENDANT S COUNSEL: NO. YOU MAY PUBLISH THE EXHIBIT. BY PLAINTIFF S COUNSEL: [PUBLISH PTX 3 ON SCREEN] Q: LET S LOOK AT THE TOP WHERE IT SAYS: OVERSHIELD S RE-TWEET MESSAGE AND #BIGSPIN IN CHINA. OKAY. Q: HOW DID YOU COME TO LEARN ABOUT THE RE-TWEET? WELL ANYTIME ONE OF YOUR TWEETS IS RE-TWEETED, YOUR TWITTER PAGE WILL INDICATE THAT THE ORIGINAL TWEET WAS RE-TWEETED AND BY WHOM. Q: NOW, LET S LOOK AT THE BOTTOM, WHERE IT SAYS OVERSHIELD S PROMOTED TWEET MESSAGE AND HOW DO YOU SPIN? SEE #BIGSPIN IN CHINA AND CHECK OUT THE NEW LINE OF FOOTBALL SHOES #BIGSPIN. HOW DID YOU COME TO LEARN ABOUT THIS PROMOTED TWEET? I RECEIVED IT ON MY TWITTER PAGE. Q: DO YOU KNOW WHO ELSE RECEIVED THE PROMOTED TWEET? I SUSPECT THAT PEOPLE WHO HAVE IDENTIFIED THEMSELVES ON TWITTER AS SOCCER PLAYERS OR FANS. BY DEFENDANT S COUNSEL: OBJECTION, SPECULATION, LACK OF FOUNDATION. 12

13 SUSTAINED. BY PLAINTIFF S COUNSEL: Q: AS A PROFESSIONAL SOCCER PLAYER AND LONGTIME TWITTER USER, HOW DID YOU UNDERSTAND OVERSHIELD S TWEET? I UNDERSTAND IT TO BE AN ADVERTISEMENT THAT WAS TARGETED AT SOCCER PLAYERS AND FANS. Q: AND WHY DO YOU SAY THAT? WELL THE SECOND MESSAGE THERE SAYS CHECK OUT THE NEW LINE OF FOOTBALLS SHOES #BIGSPIN. THIS MAKES IT CLEAR THAT OVERSHIELD WAS ADVERTISING ITS NEW LINE OF SOCCER SHOES. THE MESSAGE ALSO SAYS SEE #BIGSPIN IN CHINA WHICH IS A REFERENCE TO ME AND MY ORIGINAL TWEET DISCUSSING MY TRIP TO CHINA. THE ONLY PEOPLE WHO WOULD BE INTERESTED IN SOCCER SHOES AND MY ACTIVITIES WOULD BE SOCCER FANS AND PLAYERS. Q: AS A PROFESSIONAL SOCCER PLAYER AND LONGTIME TWITTER USER, HOW DID YOU UNDERSTAND OVERSHIELD S PROMOTED TWEET WHERE IT SAID SEE #BIGSPIN IN CHINA. I UNDERSTOOD THIS TO SUGGEST THAT I WAS SOMEHOW AFFILIATED WITH THE NEW LINE OF FOOTBALL SHOES CALLED THE BIG SPIN. Q: AS A PROFESSIONAL SOCCER PLAYER AND LONGTIME TWITTER USER, HOW DID YOU UNDERSTAND OVERSHIELD S PROMOTED TWEET WHERE IT SAID HOW DO YOU SPIN? THAT S ANOTHER SOCCER REFERENCE. OVERSHIELD WAS ASKING ITS POTENTIAL CUSTOMERS IF THEY CAN SPIN THE BALL LIKE I CAN. Q: SO WHAT DID YOU DO WHEN YOU SAW OVERSHIELD S TWEETS? I WENT ON TOODLE, THE FAMOUS SEARCH ENGINE, AND SEARCHED OVERSHIELD AND BIG SPIN. Q: WHAT DID YOU FIND? 13

14 A PAIR OF SOCCER SHOES WITH MY NAME ON THEM. Q: YOUR HONOR, PERMISSION TO APPROACH THE WITNESS WITH PLAINTIFF S EXHIBIT 4, A SHOE? GRANTED. BY PLAINTIFF S COUNSEL: [HAND PTX 4 TO TOMAS] Q: MR. TOMAS, DO YOU RECOGNIZE EXHIBIT 4? A: YES, IT S THE OVERSHIELD SOCCER SHOE THAT I UNCOVERED ONLINE. Q: MOVE TO ADMIT AND PERMISSION TO PUBLISH TO THE JURY? COUNSEL, ANY OBJECTION? BY DEFENDANT S COUNSEL: NO OBJECTION. THERE BEING NO OBJECTION, YOU MAY PUBLISH THE EXHIBIT. BY PLAINTIFF S COUNSEL: [WALK PAST JURY WITH PTX 4 AND RETURN TO TOMAS] Q: SIR, TELL THE JURY WHERE YOUR MARK IS ON THE SHOE. ON THE VERY FRONT OF THE SHOE, ON THE TOP OF THE FOOT. IT S ACTUALLY ON THE SAME SPOT OF THE SHOE WHERE I CUT OR SLICE THE BALL WHEN KICKING IT TO GIVE MY SHOTS THE SPIN THAT I M FAMOUS FOR. 14

15 Q: SIR, PLEASE TURN TO PLAINTIFF S DEMONSTRATIVE EXHIBIT 5 IN YOUR BINDER. DO YOU RECOGNIZE THIS EXHIBIT? ITS AN IMAGE OF THE SOCCER SHOE THAT WE WERE JUST TALKING ABOUT. Q: PERMISSION TO PUBLISH TO THE JURY? COUNSEL, ANY OBJECTION? BY DEFENDANT S COUNSEL: NO OBJECTION. THERE BEING NO OBJECTION, YOU MAY PUBLISH THE EXHIBIT. BY PLAINTIFF S COUNSEL: [REMOVE PTX 3 FROM SCREEN AND PUBLISH PTX 5 ON SCREEN] Q: IS THERE ANY DIFFERENCE BETWEEN THE IMAGE OF THE SOCCER SHOE THAT WE JUST PUBLISHED AND THE PHYSICAL SOCCER SHOE THAT WE WERE JUST DISCUSSING? NO. IT S THE SAME SHOE WITH MY NAME ON THE FRONT OF IT. Q: DID YOU AUTHORIZE OVERSHIELD TO MAKE OR ADVERTISE SOCCER SHOES WITH YOUR MARK ON THEM? NO. Q: DID ANYONE EVERY ASK YOUR PERMISSION TO PUT YOUR MARK ON THESE SHOES? NO. Q: DO YOU ENDORSE OVERSHIELD SHOE OR APPAREL PRODUCTS? NO. Q: WHAT WAS YOUR REACTION WHEN YOU SAW THE OVERSHIELD TWEETS AND THIS SHOE? 15

16 I WAS FURIOUS. IT WAS A BLATANT COPY OF MY BIG SPIN NICKNAME AND BUBBLE-TEA MARK. Q: AS A TWITTER USER WITH 250,000 FANS, WAS OVERSHIELD S TWEETS AVAILABLE TO TWITTER USERS IN THE UNITED STATES? YES. ABSOLUTELY. Q: AND WAS OVERSHIELD S WEBSITE AVAILABLE IN THE UNITED STATES? YES. Q: AND COULD USER S PURCHASE THE SHOES DEPICTED IN PLAINTIFF S DEMONSTRATIVE EXHIBIT 5 ON OVERSHIELD S WEBSITE? YES. Q: OKAY. NO FURTHER QUESTIONS. THANK YOU, MR. TOMAS. [REMOVE PTX 5 FROM SCREEN AND PUT AWAY PTX 4] 16

17 BY DEFENDANT S COUNSEL: CROSS EXAMINATION OF FRED TOMAS Q: GOOD AFTERNOON, MR. TOMAS. MY NAME IS LAURA WYTSMA. I M ON OF OVERSHIELD S ATTORNEYS. YOU MIGHT REMEMBER THAT WE MET SIX MONTHS AGO DURING A DEPOSITION FOR THIS CASE. YES, I REMEMBER. THAT WAS A LONG DAY. GOOD AFTERNOON. YOU RE TALENTED, AND FAMOUS, RIGHT? THAT S WHAT YOU JUST TOLD THE JURY, RIGHT? AND YOU MAKE A LOT OF MONEY, RIGHT? MILLIONS OF DOLLARS A YEAR JUST FOR PLAYING SOCCER, RIGHT? AND YOU MAKE MILLIONS OF DOLLAR EACH YEAR ON SALES OF YOUR DRINK, RIGHT? DO YOU CONSIDER YOURSELF A GREEDY PERSON, MR. TOMAS? OBJECTION QUESTION WITHDRAWN. Q: MR. TOMAS, DO YOU SELL BUBBLE-TEA IN THE UNITED STATES? NO. ONLY IN CHINA. Q: DO YOU SELL ANY PRODUCTS IN THE UNITED STATES UNDER THE NAME BIG SPIN? NO. I DON T SELL ANYTHING IN THE UNITED STATES. BUT MAYBE ONE DAY, I LL SELL MY TEA HERE. Q: SO YOU HAVEN T SOLD ANY PRODUCTS IN THE UNITED STATES AS OF TODAY? CORRECT. Q: DO YOU PROVIDE ANY SERVICES IN THE UNITED STATES? YES. I PLAY SOCCER PROFESSIONALLY AND I COMMUNICATE WITH MY FANS ABOUT ME, MY SOCCER, AND MY INTERESTS VIA TWITTER. 17

18 Q: LET S BREAK THAT APART. YOU PLAY SOCCER FOR THE CHICAGO BLAZE. DO YOU WEAR A UNIFORM? YES. Q: YOUR UNIFORM HAS YOUR SURNAME, TOMAS, ON IT, CORRECT? THAT S RIGHT. Q: IT DOESN T HAVE YOUR NICKNAME BIG SPIN ON IT, CORRECT? THAT S CORRECT. MAJOR LEAGUE SOCCER ONLY ALLOWS SURNAMES ON PLAYER UNIFORMS. Q: OKAY. SO YOU DON T PLAY SOCCER UNDER YOUR NICKNAME. RATHER, YOU PLAY IT UNDER YOUR SURNAME, RIGHT? THAT S RIGHT. Q: OKAY, LET S GO BACK TO TWITTER. YOU TWEET UNDER THE USER NAME BIG SPIN, RIGHT? CORRECT. A: NOW YOUR TWEETS DON T REACH ANYONE IN CHINA, WHERE YOUR BUBBLE TEA IS SOLD, RIGHT? A: THAT S TRUE Q: AND YOU DESCRIBED YOURSELF AS A BIG FOODIE, RIGHT? YES. I LOVE NEW RESTAURANTS. I M VERY THANKFUL TO LIVE IN CHICAGO WHERE I CAN BE CLOSE TO SOME OF THE BEST RESTAURANTS IN THE WORLD. I LOVE THE CULINARY FLEXIBILITY THE CITY OFFERS ME. FROM THE WEST LOOP, TO RIVER NORTH, TO LOGAN SQUARE, THE RESTAURANT SCENE IS AMAZING. Q: AND YOU REGULARLY USE TWITTER TO COMMENT ON THE RESTAURANTS THAT YOU VISIT, RIGHT? THAT S RIGHT. Q: AND IN YOUR COMMENTS YOU GIVE YOUR TAKE, GOOD OR BAD, ON EACH RESTAURANT THAT YOU VISIT, ISN T THAT RIGHT? THAT S RIGHT. 18

19 Q: SO YOU PUT YOUR SPIN ON THE QUALITY OF THE RESTAURANT, RIGHT? I M NOT SURE I WOULD DESCRIBE IT THAT WAY. I GIVE MY TAKE ON THE RESTAURANT, GOOD OR BAD. Q: OKAY, SO YOU GIVE YOUR TAKE, YOUR SPIN ON EACH RESTAURANT. BY PLAINTIFF S COUNSEL: OBJECTION, MISCHARACTERIZES THE WITNESS TESTIMONY. DEFENDANT S COUNSEL IS TESTIFYING. SUSTAINED. THE JURY WILL DISREGARD, COUNSEL S STATEMENT. ONLY WITNESS TESTIMONY, NOT ATTORNEY COMMENTS OR ARGUMENTS, IS EVIDENCE THAT CAN BE CONSIDERED IN DECIDING THE ISSUE BEFORE YOU. NOW IN THE PAST, YOU HAVE ENDORSED OTHER PRODUCTS, CORRECT? IN FACT, YOU ONCE ENDORSED A PROTEIN POWDER OR MEN S COLOGNE???, RIGHT? BUT YOU DID NOT USE THE BIG SPIN IN CONNECTION WITH THAT PRODUCT, RIGHT? AND THAT WAS A HIGHLY SUCCESSFUL PRODUCT EVEN WITHOUT USE OF THE NAME BIG SPIN RIGHT? BY DEFENDANT S COUNSEL: Q: OKAY. LET S MOVE ALONG. MR. TOMAS, HAVE YOU OR YOUR CHINESE BUBBLE-TEA COMPANY RECEIVED ANY INQUIRIES REGARDING OVERSHIELD S USE OF THE TERM BIG SPIN ON OVERSHIELD S SHOES? NO. Q: DOES YOUR BUBBLE-TEA COMPANY HAVE A CUSTOMER SUPPORT PHONE NUMBER? YES. 19

20 Q: AND DO THEY KEEP RECORDS OF PHONE CALLS THAT THEY RECEIVE? YES, WE RECORD THEM FOR QUALITY PURPOSES. Q: AND DO YOU KNOW IF YOUR CUSTOMER SUPPORT DIVISION RECEIVED ANY PHONE CALLS ASKING IF YOU OR YOUR COMPANY IS AFFILIATED WITH OVERSHIELD S SHOES? I LOOKED INTO THIS. NO ONE HAS MADE ANY SUCH INQUIRY. Q: NO ONE HAS ASKED YOU IF YOU STARTED SELLING SHOES, RIGHT? A. CORRECT Q: AND NO ONE HAS RESPONDED TO YOUR TWITTER FEED ASKING YOU WHERE TO BUY PHONES, RIGHT? Q: NONE OF YOUR FELLOW PROFESSIONAL PLAYERS HAVE EVER ASKED IF YOU ARE NOW IN THE SHOE BUSINESS, RIGHT? Q: IN FACT, NO ONE HAS EVER SUGGESTED DIRECTLY TO YOU THAT THEY WERE CONFUSED AS TO WHETHER YOU WERE ENDORSING, SELLING, OR PROMOTING THE SOCCER SHOES, RIGHT? Q: YOU SAID THAT YOU ARE FAMOUS AND OFTEN IN THE PRESS. HAVE YOU SEEN ANY ARTICLES SUGGESTING THAT YOU ARE NOW IN THE SHOE BUSINESS? AND SO IN THE MONTHS THAT OVERSHIELD HAS BEEN SELLING ITS SHOES, YOU ARE UNAWARE THAT ANYONE WAS ACTUALLY CONFUSED AS TO THE SOURCE OF THE SHOES, ISN T THAT RIGHT? A: WELL, I OBVIOUSLY DON T KNOW EVERYTHING THAT S PUBLISHED ABOUT ME. Q: SIR, IS IT CORRECT, YES OR NO, THAT YOU HAVE NO EVIDENCE TO PRESENT TO THE JURY THAT ANY PERSON WAS ACTUALLY CONFUSED BY OVERSHIELD S USE OF BIG SPIN ON ITS SHOES. Q: OKAY. I WANT TO TALK ABOUT SOCCER SHOES. YOU RE A PROFESSIONAL SOCCER PLAYER, SO YOU MUST KNOW SOMETHING ABOUT SHOES, ISN T THAT RIGHT? YES. I CONSIDER MYSELF VERY KNOWLEDGEABLE ABOUT SOCCER SHOES. I VE PLAYED SOCCER SINCE I WAS 5 YEARS OLD. 20

21 Q: AND YOU ARE PROBABLY VERY FAMILIAR WITH THE HIGH-END SHOES THAT ARE MARKETED AT ELITE PLAYERS? WHAT DO YOU MEAN BY ELITE PLAYERS? Q: I M SORRY. LET ME QUALIFY THAT. I M REFERRING TO COLLEGIATE AND PROFESSIONAL SOCCER PLAYERS. SURE, I AM FAMILIAR WITH SHOES THAT COLLEGE AND PROFESSIONAL SOCCER PLAYERS WEAR. Q: WHAT SEPARATES A HIGH-END SOCCER SHOE WORN BY AN ELITE PLAYER FROM A SOCCER SHOE WORN BY AN AMATEUR? LIKE ANYTHING ELSE, IT S THE QUALITY OF THE MATERIALS. A HIGH-END SHOE IS MADE OF GENUINE LEATHER UPPERS, NOT THE FAKE, IMITATION LEATHER. AND THE SOLES AND CLEATS ARE MADE OF A MORE FORGIVING RUBBER THAT WON T CAUSE BLISTERS. Q: THAT MUST COST MORE TO MANUFACTURE, RIGHT? YES. HIGH-END SHOES SELL FOR MORE THAN A $100 US AND CAN EVEN COMMAND CLOSE TO $300 US PER PAIR. Q: SO IF I TOLD YOU THAT OVERSHIELD S SOCCER SHOES COST $300 SHOES, THAT WOULD PROBABLY PUT THEM IN THE HIGH-END CATEGORY, RIGHT? PROBABLY. I D HAVE TO CHECK THEM OUT AND SEE IF THEY ARE MADE OF QUALITY MATERIALS. Q: OKAY. ASSUME THAT OVERSHIELD S SOCCER SHOES ARE MADE OF GENUINE LEATHER AND QUALITY SOLES AND CLEATS AND COST $300 PER PAIR. WOULD THAT PUT THEM IN THE HIGH-END CATEGORY? YES. Q: OKAY. AND WHEN ELITE SOCCER PLAYERS ARE LOOKING FOR A SOCCER SHOE, DO THEY CAREFULLY CONSIDER THE SHOE THEY ARE BUYING BEFORE PURCHASING IT? YES. THE SHOE IS THE PRIMARY PIECE OF SOCCER EQUIPMENT. IT S THE MOST IMPORTANT. SO YES. 21

22 BY THE WAY, WHERE DO YOU BUY YOUR SOCCER SHOES? SPORTS AUTHORITY AND THAT STORE DOES NOT SELL BUBBLE TEA, RIGHT? CORRECT HAVE YOU EVER SEEN BUBBLE TEA ADVERTISED IN ANY SPORTS- RELATED MAGAZINE? NO Q: OKAY. NO FURTHER QUESTIONS. THANK YOU, MR. TOMAS. 22