CONFIDENTIALITY AND PROTECTIVE ORDER

CHARLES F. EICK, Magistrate Judge.

WHEREAS, in the course of conducting discovery of each other's claims and defenses, the parties have requested of each other the production of discovery material which sets forth or contains trade secrets or confidential information entitled to protection as defined in paragraphs 3-6, below, including but not limited to, customer lists, sales, revenues, costs, profits, and profit margins relating to products and/or services offered under the Accused Mark. Accordingly, the parties seek to designate such information as "Confidential Discovery Material" pursuant to this Order. Upon such basis, the parties further believe that "good cause" exists for the entry of this Order.

IT IS HEREBY STIPULATED AND AGREED, by and among Plaintiff and Defendants herein, and their respective undersigned counsel, as follows:

1. Purpose.

This Order Protecting Confidentiality (the "Order") is intended to expedite the flow of discovery material, facilitate the prompt resolution of disputes over confidentiality, and ensure that protection is afforded to material entitled to confidential treatment under the Federal Rules of Civil Procedure or any applicable state rules, regulations, statutes, or common law.

2. Information.

Information includes the contents of physical or electronic documents, data, oral and written testimony, answers to interrogatories, and admissions produced or disclosed by any party to these proceedings or by any third party (the "Producing Party") to any other party or parties (the "Receiving Party").

3. Condition.

This Order covers information that the Producing Party designates "Confidential" or "Highly Confidential-Attorneys' Eyes Only" (collectively "Confidential Discovery Material") in the above-captioned case (the "Lawsuit"). Confidential Discovery Material may be designated as Confidential when the Producing Party reasonably believes the information disclosed constitutes, reflects, discloses, or contains information subject to protection under the Federal Rules of Civil Procedure or any applicable state rules, regulations, statutes, or common law. Confidential Discovery Material may be designated as Highly Confidential-Attorneys' Eyes Only when the Producing Party reasonably believes that the disclosure of the information to a party or third-party competitors, suppliers, customers, or the public will or is likely to result in significant commercial harm to the Producing Party. Highly Confidential information includes trade secrets, confidential and proprietary financial information, competitive analysis, study methodologies, and similar information.

4. Procedure.

Designation. To designate information as Confidential or Highly Confidential-Attorneys' Eyes Only, a Producing Party must either mark it or identify it on the record as one or the other. Either designation may be withdrawn.

Marking. All or any part of a document, tangible object, discovery response, or pleading that is disclosed, produced, or filed by a Producing Party may be designated Confidential or Highly Confidential by marking the appropriate legend ("CONFIDENTIAL" or "HIGHLY CONFIDENTIAATTORNEYS' EYES ONLY") on the face of the document and each page so designated. With respect to tangible items or electronically stored information produced in native format, the appropriate legend shall be marked on the face of the tangible item or media containing electronically stored information, if practicable, or by written notice to the Receiving Party at the time of disclosure, production, or filing that the tangible item or media is Confidential or Highly Confidential-Attorneys' Eyes Only or contains Confidential or Highly Confidential-Attorneys' Eyes Only information.

Timing. A Producing Party may designate some or all of a witness's testimony as Confidential or Highly Confidential-Attorneys' Eyes Only on the record during a deposition by asking the court reporter to so note such designations in the deposition transcript. Alternatively, within twenty (20) days of receipt of a deposition transcript, a Producing Party may designate some or all of a witness's testimony (a) Confidential or (b) Highly Confidential-Attorneys' Eyes Only by designating the transcript in its entirety (if, in good faith, such treatment is warranted) or by providing the specific page and line designations over which confidentiality is claimed to all counsel of record ("Counsel"). Deposition testimony shall be treated as Highly Confidential-Attorneys' Eyes Only pending the deadline or, if applicable, extended deadline for designation.

Errors. Accidental or inadvertent disclosure of information without the appropriate legend does not waive the status of the disclosure as being Confidential Discovery Material. If Confidential of Highly Confidential-Attorneys' Eyes Only Information is inadvertently disclosed without the appropriate legend, the Producing Party may afterward assert a claim or designation of confidentiality, and promptly provide a replacement copy of the information containing the appropriate legend. The Receiving Party then must immediately return the original information and all copies of the same to the Producing Party, and in any case, treat the information as if it were originally labeled Confidential or Highly Confidential-Attorneys' Eyes Only.

5. Who.

Confidential Information may be disclosed only to and used only by:

Court reporters (including audio and video), interpreters, translators, copy services, graphic support services, document imaging services, and database/coding services retained by counsel;

Witnesses, except for lay witnesses who previously have not seen or had access to the Confidential Information and who have no reasonable need to see the Confidential Information to provide testimony;

Any independent expert1 or consultant, and his, her or its staff, hired by a party for litigation purposes who agrees to be bound by this Order and executes a certification attached as Exhibit A; and

Any other person to whom the Producing Party, in writing, authorizes disclosure.

6. Highly Confidential-Attorneys' Eyes Only.

Disclosure and use of information designated Highly Confidential-Attorneys' Eyes Only is restricted to the following persons:

Court reporters (including audio and video), interpreters, translators, copy services, graphic support services, document imaging services, and database/coding services retained by counsel;

Mediators and their staff, provided those persons execute a certification attached as Appendix A;

Persons who prepared, received, or reviewed the Highly Confidential-Attorneys' Eyes Only document before its production in the Lawsuit and who execute a certification attached as Appendix A;

Independent experts or consultants retained by a Party for litigation purposes, provided the expert or consultant executes a certification attached as Appendix A; and

Any other person to whom the Producing Party, in writing, authorizes disclosure. The Parties agree to work together in good faith to determine whether a particular lay witness or Receiving Party may be shown Highly Confidential-attorneys' Eyes Only Information where there is a reasonable need to show the witness or Receiving Party Highly Confidential-Attorneys' Eyes Only Information in order to provide testimony, in furtherance of settlement discussions, or other legitimate litigation purposes. The Parties further agree that, in addition to working together in good faith, a Producing Party will not unreasonably withhold its consent to show a witness or Receiving Party Highly Confidential-Attorneys' Eyes Only Information following a good faith request by and conference with the Receiving Party's counsel.

A party may not disclose Confidential Discovery Material to an Expert pursuant to paragraphs 5 and 6 of this order until after the Expert has signed an undertaking in the form of Exhibit A to this Order. The party obtaining the undertaking must serve it on all other parties within ten days after its execution. At least ten days before the first disclosure of Confidential Discovery Material to an Expert (or member of their staff), the party proposing to make the disclosure must serve the producer with a written identification of the Expert and a copy of his or her curriculum vitae. If the producer has good cause to object to the disclosure (which does not include challenging the qualifications of the Expert), it must serve the party proposing to make the disclosure with a written objection within ten days after service of the identification. Unless the parties resolve the dispute within ten days after service of the objection, the producer must move the Court promptly for a ruling, and the Confidential Discovery Material may not be disclosed to the Expert without the Court's approval.

In the event a party wishes to make disclosure of Confidential Discovery Material to persons other than those referred to in paragraphs 5 or 6 above, the parties shall negotiate in good faith to try to reach agreement, and if they cannot, then such party shall apply to the Court, with copies to counsel for the producing party, or party who claims confidentiality, as well as all other counsel, requesting the Court to issue an order permitting the petitioning party's proposed disclosure. In its application, the petitioning party must submit a written statement (i) affirming that, the petitioning party has reasonable need for the technical and/or analytical assistance of a person or persons other than those persons referred to in paragraphs 5 or 6; (ii) identifying the Confidential Discovery Material that the petitioning party proposes to disclose to such person or persons; (iii) identifying the name and address and business or occupation of the person or persons to whom the proposed disclosure is to be made; and (iv) stating the reasons why such Confidential Discovery Material should be disclosed to such persons as well as the importance of such information to the development and substance of the petitioning party's case. However, no disclosure shall be required of attorney work product or the mental impressions, conclusions, opinions or legal theories of any attorney or other representative of the petitioning party concerning the litigation. Within ten (10) days after such notice, counsel for the producing party, the party who claims confidentiality, or any other party, shall give written notice of its objection to such disclosure to the Court, with copies to the petitioning party and all other counsel.

7. Where.

Confidential and Highly Confidential-Attorneys' Eyes Only Information must be used only in this Lawsuit.

8. How.

Filings, Hearings, and Trial. In the event that any Party seeks to use information or documents subject to the confidentiality restrictions of this Stipulated Protective Order in motions, affidavits, briefs, or other documents filed with the Court, or seeks to offer such information or documents in any hearing before the Court, such Party shall submit a written application and a proposed order to the judge to whom such papers are directed along with the document(s) submitted for filing under seal requesting that such materials be filed under seal in the manner prescribed by Central District Local Rule 79-5.1 and judge's orders, if applicable. Written information or documents containing Confidential Discovery Material submitted for filing under seal by the Court shall be marked with the appropriate confidentiality level. Further, in any hearing before the Court including trial, and subject to the discretion of the Court, the courtroom shall be cleared, except for those persons permitted access to the Confidential Discovery Material pursuant to this Stipulated Protective Order.

However, the parties agree that allowing the Court to review documents in camera shall not be a violation of this Order. Further, the failure to "file" documents under seal, so long as they are sufficiently identified by Bates number (and previously produced by any party) shall not constitute grounds for an objection (such as on grounds that they were not "filed" under seal or otherwise). Notwithstanding the lack of available objection, sufficiently abstract references that do not disclose the substance of the Confidential or Highly Confidential-Attorneys' Eyes Only documents may be made in open court, in filed pleadings, or at any hearing (excluding in camera use) without first seeking and obtaining a sealing order.

In any subsequent appellate review, the fact that documents were not filed under seal (so long as identified by Bates number) at the time of any hearing shall not be grounds for an appellate objection. However, all parties agree to work in good faith to comply with any requirement of the appellate court to create or complete the record for an appeal.

Service. Any pleading or attachment filed under seal shall be served on Counsel.

Subpoenas. If Confidential or Highly Confidential-Attorneys' Eyes Only Information is subpoenaed from the Receiving Party, the Receiving Party must notify the Producing Party in writing within five (5) days of its receipt that the subpoena covers Confidential or Highly Confidential-Attorneys' Eyes Only Information. If, within five (5) days of receiving notice, the Producing Party advises the Receiving Party that it objects to production of the Confidential or Highly Confidential-Attorneys' Eyes Only Information, the Receiving Party shall not produce the Confidential or Highly Confidential-Attorneys' Eyes Only Information unless and until required to do so by an order of a court of competent jurisdiction; however, the Producing Party shall prepare any motions for protection and/or objections to resist production under the subpoena, and shall also attend any hearings as necessary to protect the documents from disclosure.

9. Documents Produced by Third Parties.

The Parties agree that any non-party providing documents, testimony or tangible things in the course of proceedings in this case, may designate such documents, testimony or tangible things as Confidential or Highly Confidential-Attorneys' Eyes Only as though the non-party were a Party, and the rights, duties and obligations of the Agreed Protective Order shall apply to such Confidential or Highly Confidential-Attorneys' Eyes Only Information, and the terms and procedures of the Agreed Protective Order shall apply to the Parties and to any non-party by their utilization of the procedures of the Agreed Protective Order.

10. Challenges.

Any party may object to the propriety of the designation of specific material as Confidential or Highly Confidential-Attorneys' Eyes Only by serving a written objection upon the Producing Party's counsel. The Producing Party or its counsel shall thereafter, within fourteen (14) calendar days, respond to the objection in writing by either: (a) agreeing to remove the designation or (b) stating the reasons for the designation. If the Objecting Party and the Producing Party are subsequently unable to agree upon the terms and conditions of disclosure for the material(s) in issue, the Objecting Party may move the Court for an order withdrawing the designation as to the specific designations on which the Parties could not agree. Counsel may agree to reasonable extensions of the fourteen (14) day period, if necessary. If the Objecting Party files a motion, the information at issue shall continue to be treated in the manner as designated by the Producing Party until the Court orders otherwise. If the parties are at odds concerning the designation of a large number of documents, the parties may meet and confer with one another using representative/exemplar documents, and if such efforts do not resolve the dispute, submit the issue to the Court for resolution using representative/exemplar documents.

11. Return or Destroy Confidential Discovery Material.

Within ninety days of the final termination of any party from all proceedings in this Lawsuit by agreement or by an order from which no further appeal is possible, that party, its employees, consultants and experts must destroy or return all originals and/or copies of documents with Confidential or Highly Confidential-Attorneys' Eyes Only Information, provided however, that (a) no Party, its counsel, employees, consultants, or experts shall be required to destroy or return court-filed documents or that Party's privileged communications and work product, (b) counsel may retain, subject to the terms of this Order, a file copy of all papers, including testimony transcripts, filed or served in this action, and (c) consultants and experts representing multiple parties need not destroy or return any documents until the last of their represented parties has been terminated from the foregoing referenced proceedings. At the written request of the Producing Party, any person or entity with a duty to destroy or return Confidential or Highly Confidential-Attorneys' Eyes Only Information in accordance with this Paragraph, that has custody or control of recordings, notes, memoranda, summaries or other written materials, and all copies thereof, relating to or containing Confidential or Highly Confidential-Attorneys' Eyes Only Information produced by the Producing Party (the "Discovery Materials") shall deliver to the Producing Party an affidavit certifying that reasonable efforts have been made to assure that all Discovery Materials (except for privileged communications, work product and court-filed documents as stated above) have been destroyed or delivered to the Producing Party in accordance with the terms of this Order. This Order survives the termination of this Lawsuit.

12. Certain Exceptions.

Nothing herein shall be deemed to restrict the disclosure by any Party of its own documents or materials to its own employees, agents, and witnesses, whether or not marked with a Confidential Discovery Material designation. Further, any information that would be considered Confidential or Highly Confidential-Attorneys' Eyes Only according to the above provisions of this Order shall not be so considered in the hands of any party who obtained the information by lawful means other than production by the Producing Party.

Nothing herein shall affect the right of any party to seek additional protection from the Court against the disclosure of any documents or materials or to seek any amendment of the terms hereof or to strike the "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY" designation of any materials produced herein.

Any party may apply to this Court at any time, upon proper notice, for a modification of this Protective Order with respect to the handling or designation of any document(s) or for any other purpose.

Applications to the Court to enforce this agreement, modify this agreement or in any way related to this agreement may be made to any federal court with concurrent subject matter jurisdiction over the claims raised in this action, including specifically: the federal court which enters this Order; any federal court to which this case may be transferred; and any federal court issuing a subpoena or otherwise having concurrent subject matter jurisdiction over discovery proceedings.

AGREED AND APPROVED AS TO FORM:

EXHIBIT A

CERTIFICATION (PROTECTIVE ORDER EX. A)

DEMAND FOR JURY TRIAL

I _____________________, declare that I have read the Stipulated Confidentiality and Protective Order signed by the respective attorneys of the Plaintiff and Defendants herein and ordered by the Court in this action, that I understand its terms, and that I agree to be bound by all of the requirements and restrictions of said Order.

I declare under penalty of perjury that the foregoing is true and correct.