Apple Inc. v. Amazon.Com, Inc.

Filing 37

Declaration of Aaron Rubenson in Support of 36 Opposition/Response to Motion for Preliminary Injunction filed byAmazon Digital Services, Inc., Amazon.Com, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Related document(s) 36 ) (Glick, Martin) (Filed on 6/1/2011)

1 2 3 4 5 6 7 8 9 MARTIN R. GLICK (No. 40187) email: mglick@howardrice.com CLARA J. SHIN (No. 214809) email: cshin@howardrice.com SARAH J. GIVAN (No. 238301) email: sgivan@howardrice.com HOWARD RICE NEMEROVSKI CANADY FALK & RABKIN A Professional Corporation Three Embarcadero Center, 7th Floor San Francisco, California 94111-4024 Telephone: 415/434-1600 Facsimile: 415/677-6262 Attorneys for Defendants and Counter-Claimants AMAZON.COM, INC., a Delaware corporation, and AMAZON DIGITAL SERVICES, INC., a Delaware corporation 10 11 UNITED STATES DISTRICT COURT 12 NORTHERN DISTRICT OF CALIFORNIA 13 14 APPLE INC., a California corporation, 15 Plaintiff and CounterDefendant, 16 v. 17 18 AMAZON.COM, INC., a Delaware corporation, and AMAZON DIGITAL SERVICES, INC., a Delaware corporation, No. 11-CV-01327 PJH Action Filed: March 18, 2011 DECLARATION OF AARON RUBENSON IN SUPPORT OF OPPOSITION TO PLAINTIFF APPLE INC.’S MOTION FOR PRELIMINARY INJUNCTION 19 20 Defendants and CounterClaimants. 21 22 23 24 25 26 27 28 RUBENSON DECL. ISO OPP. TO MOT. FOR PI 11-cv-01327 PJH 1 I, Aaron Rubenson, declare as follows: 2 1. I am the Category Leader for Mobile Services of Defendant Amazon.com, Inc. 3 (“Amazon”), and as such am familiar with the history, business, and operations of the company, 4 including the development and launch of Amazon Appstore for Android on Amazon’s website, 5 www.amazon.com. 6 Amazon.com, Inc. and Amazon Digital Services, Inc.’s Opposition To Plaintiff and Counter- 7 Defendant Apple Inc.’s Motion For Preliminary Injunction (“Declaration”) upon personal 8 knowledge except where indicated as to information and belief and, if called upon to testify, could 9 and would testify competently hereto. 10 2. I make this Declaration in support of Defendants and Counter-Claimants Amazon is a corporation organized and existing under the laws of the State of Delaware, 11 with its headquarters in Seattle, Washington. 12 www.amazon.com website went online in 1995. Amazon started as an online bookstore, but soon 13 diversified, selling DVDs, CDs, MP3 downloads, computer software, video games, electronics, 14 apparel, furniture, food, toys, and more. Amazon is one of the largest online retailers in the United 15 States, with over 33,000 employees and over $34 billion in total annual gross revenue in 2010. 16 3. Jeff Bezos founded Amazon in 1994, and the In early 2010, Amazon decided to sell apps for Android mobile devices, and began 17 developing an app store through which to sell those apps—Amazon Appstore for Android. As the 18 Category Leader for Mobile Services, I was one of the people primarily responsible for this effort. 19 Amazon’s intention to open an app store for Android mobile devices became public in October 20 2010. 21 4. On or about March 22, 2011, after many months of planning and development, Amazon 22 launched Amazon Appstore for Android. 23 www.amazon.com website dated March 24 and 25, 2011, reflecting the introduction and operation 24 of Amazon Appstore for Android. 25 5. Attached as Exhibit 1 are printouts from the Amazon Appstore for Android is an app store that allows a consumer to view and 26 instantly download apps for their Android devices. Users may shop Amazon Appstore for Android 27 either from their computers at the www.amazon.com website, or from the Amazon Appstore app on 28 their Android mobile devices. Attached as Exhibit 2 are printouts from the www.amazon.com RUBENSON DECL. ISO OPP. TO MOT. FOR PI -1- 11-cv-01327 PJH 1 website dated March 26, 2011, reflecting instructions to consumers regarding how to use Amazon 2 Appstore for Android. As reflected in Exhibit 2, it is not possible for a consumer to purchase an 3 app from Amazon Appstore for Android until he or she has downloaded the Amazon Appstore app 4 to his or her Android mobile device. 5 6. As reflected by its name and explained on Amazon’s website, Amazon Appstore for 6 Android is only compatible with Android devices. 7 does not offer apps for use with Apple mobile devices such as the iPhone, iPad, or iPod. 8 7. Accordingly, Amazon Appstore for Android The launch of Amazon Appstore for Android on March 22 was the result of more than a 9 year of hard work and investment by Amazon. After deciding to enter the app business in early 10 2010, my colleagues and I put together a team of people to work on this project, which included 11 website design, technical design, developing business relationships with developers, branding, 12 marketing, and customer outreach. Amazon has spent millions of dollars in connection with its 13 development and launch of Amazon Appstore for Android. 14 8. Since Amazon Appstore for Android went live on March 22, many millions of apps 15 have been downloaded by consumers who own Android devices. That number increases every 16 minute. If this Court were to enjoin Amazon from using the term “app store,” Amazon might be 17 forced to shut down Amazon Appstore for Android for a period of time while it developed a new 18 designation not already in use by other competitors. Such a shutdown would result not only in lost 19 app sales during shutdown, but also a general loss of confidence in Amazon by its customers. In 20 addition, if the Court were to find that Apple has exclusive rights to the term “app store”, Apple 21 would essentially have a monopoly of the simplest and shortest term for what Amazon Appstore for 22 Android is—a store for apps. 23 24 25 9. If Amazon were required to change the name of Amazon Appstore for Android, Amazon would have to undertake the following tasks: • Amazon has contractual relationships with many thousands of app developers who joined 26 Amazon’s app developer program and communicate with Amazon under the Amazon 27 Appstore for Android name. A name change would require Amazon to create a developer 28 outreach program that explains the change and the rationale behind Amazon’s new brand RUBENSON DECL. ISO OPP. TO MOT. FOR PI -2- 11-cv-01327 PJH 1 positioning. Creating this program and communicating with all of Amazon’s developers 2 would require significant Amazon employee resources and would be time-consuming and 3 expensive. • 4 Over a million Amazon customers have purchased many millions of apps through Amazon 5 Appstore for Android via Amazon’s www.amazon.com website and via the Amazon 6 Appstore for Android app that customers may download to their Android devices in order 7 to purchase apps directly on their smartphones. A name change would require Amazon to 8 educate its millions of customers regarding the name change and the reasoning behind it. 9 A name change would also require a new version of the Amazon Appstore for Android 10 app to be developed and installed on millions of Android smartphone user’s devices. 11 Again, this would require significant Amazon employee resources. • 12 Amazon has engaged in a large number of interviews and communications with the press 13 regarding Amazon Appstore for Android. If Amazon were required to change the name of 14 Amazon Appstore for Android, Amazon would have to engage in a new public relations 15 campaign to explain what changes are occurring and why. • 16 Hundreds of different design elements incorporating the Amazon Appstore for Android 17 name currently exist across Amazon’s websites, its partners’ websites, and among 18 developers. A name change would require Amazon to create all new visual assets to 19 account for this change, which again would require significant employee resources. • 20 21 Amazon would be required to seek the advice of counsel in clearing a new designation for its app store. 22 10. If Amazon were to prevail at trial, Amazon would again face the same difficulties and 23 expenses identified in Paragraph 9 above in switching back to the designation Amazon Appstore for 24 Android. Developers and customers would also likely become perplexed by the multiple name 25 changes, which would result in a loss of confidence in Amazon. For these, Amazon would be 26 unlikely to make the switch a second time even if Amazon prevails at trial. 27 // 28 // RUBENSON DECL. ISO OPP. TO MOT. FOR PI -3- 11-cv-01327 PJH