Apple Inc. v. Amazon.Com, Inc.

Filing 26

Declaration of David R. Eberhart in Support of 25 MOTION to Shorten Time TO HEAR MOTION FOR PRELIMINARY INJUNCTION filed byApple Inc.. (Related document(s) 25 ) (Eberhart, David) (Filed on 4/13/2011)

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1 2 3 4 5 6 7 DAVID R. EBERHART (S.B. #195474) deberhart@omm.com RYAN J. PADDEN (S.B. #204515) rpadden@omm.com DAVID J. SEPANIK (S.B. #221527) dsepanik@omm.com O’MELVENY & MYERS LLP Two Embarcadero Center, 28th Floor San Francisco, CA 94111 Telephone: (415) 984-8700 Facsimile: (415) 984-8701 Attorneys for Plaintiff APPLE INC. 8 9 UNITED STATES DISTRICT COURT 10 NORTHERN DISTRICT OF CALIFORNIA 11 OAKLAND DIVISION 12 13 APPLE INC., a California corporation, 14 15 16 17 18 Plaintiff, v. AMAZON.COM, INC., a Delaware corporation, and AMAZON DIGITAL SERVICES, INC., a Delaware corporation, Case No. CV 11-01327 PJH DECLARATION OF DAVID R. EBERHART IN SUPPORT OF PLAINTIFF APPLE INC.’S MOTION TO SHORTEN TIME TO HEAR ITS MOTION FOR PRELIMINARY INJUNCTION Defendants. 19 20 21 22 23 24 25 26 27 28 DEC. OF D. EBERHART ISO APPLE’S MOT. TO SHORTEN TIME, CASE NO. CV 11-01327 PJH 1 I, David R. Eberhart, pursuant to 28 U.S.C. § 1746, hereby declare as follows: 2 1. I am a partner with the law firm of O’Melveny & Myers LLP, counsel of record 3 for Plaintiff Apple Inc. (“Apple”). I submit this declaration in support of Apple’s motion to 4 shorten time to hear Apple’s motion for a preliminary injunction (the “P.I. Motion”) against 5 Amazon.com, Inc. and Amazon Digital Services, Inc. (collectively “Amazon”). The information 6 set forth herein is based on personal knowledge or on facts of which I am informed and believe to 7 be true. 8 2. It is my understanding that the first available civil law and motion hearing date 9 before the Court is June 22, 2011. However, Apple is suffering significant irreparable harm from 10 Amazon’s ongoing, unauthorized use of Apple’s APP STORE trademark and therefore seeks an 11 earlier hearing date. 12 3. On April 13, 2011, I spoke to outside counsel for Amazon and asked whether 13 Amazon would join Apple’s request to hear the P.I. Motion before June 22. As of the time of the 14 filing of Apple’s request, counsel had not responded to my request. Counsel has previously 15 indicated to me that Amazon will oppose any injunctive relief sought by Apple. 16 4. As set forth in the P.I. Motion and supporting declarations, Apple invested three 17 years of effort and hundreds of millions of dollars to establish a public association between Apple 18 and its APP STORE mobile software download service. Very recently, Amazon launched a 19 competing service using the mark APPSTORE. Amazon’s unlawful appropriation of Apple’s 20 trademark infringes and dilutes Apple’s mark, and the P.I. Motion seeks an order preliminarily 21 enjoining Amazon’s use. 22 5. As further set forth in the P.I. Motion, absent an injunction, Amazon’s use 23 threatens to confuse consumers by, for example, causing them to conclude falsely that Amazon’s 24 service is associated with Apple. This is particularly likely because Amazon is widely known as 25 a reseller of other companies’ products. Moreover, Apple is suffering ongoing irreparable harm 26 through Amazon’s dilution of the APP STORE mark, both by blurring—lessening the public 27 association between the APP STORE mark and Apple’s service—and tarnishment—Amazon 28 offers software that increases security risks to customers and thereby harms the reputation of -2- DEC. OF D. EBERHART ISO APPLE’S MOT. TO SHORTEN TIME, CASE NO. CV 11-01327 PJH 1 Apple’s APP STORE mark and service. All of this harm is irreparable and ongoing. 2 6. There have been no prior modifications to any hearing schedule in this case, 3 although on April 8, 2011, the parties filed a stipulation that the time for Amazon to answer or 4 otherwise respond to the complaint be extended fourteen days, up to and including April 25, 5 2011. 6 7 8 9 10 7. To my knowledge, granting the motion shortening time will have no effect on the schedule of the case beyond the timing of the preliminary injunction briefing and hearing itself. I declare under penalty of perjury of the laws of the United States that the foregoing is true and correct. Date: April 13, 2011 11 12 /s/ David R. Eberhart David R. Eberhart 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- DEC. OF D. EBERHART ISO APPLE’S MOT. TO SHORTEN TIME, CASE NO. CV 11-01327 PJH