Apple Inc. v. Amazon.Com, Inc.

Filing 46

Declaration of David R. Eberhart in Support of 45 Reply to Opposition/Response filed byApple Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Related document(s) 45 ) (Eberhart, David) (Filed on 6/8/2011)

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1 2 3 4 5 6 7 DAVID R. EBERHART (S.B. #195474) RYAN J. PADDEN (S.B. #204515) DAVID J. SEPANIK (S.B. #221527) 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, Defendants. Case No. CV 11-01327 PJH DECLARATION OF DAVID R. EBERHART IN SUPPORT OF APPLE INC.’S REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION Date: Time: Courtroom: Judge: June 22, 2011 9:00 A.M. 3, 3rd Floor Hon. Phyllis J. Hamilton 19 20 21 22 23 24 25 26 27 28 DEC. OF D. EBERHART ISO APPLE INC.’S REPLY ISO MOT. FOR PI, 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 reply in support 4 of motion for preliminary injunction against, Inc. and Amazon Digital Services, 5 Inc. (collectively “Amazon”). 6 2. I have reviewed certain registrations and applications made for trademarks before 7 the U.S. Patent and Trademark Office. Attached hereto as Exhibit 1 is a printout from the 8 Trademark Office’s website reflecting Amazon’s registration of its 1-CLICK WEBSTORE mark. 9 3. The Trademark Office has approved registrations for other marks that include the 10 word “store” including: 11 Trademark 12 Registration Number THE CONTAINER STORE 1,164,143 WOOD STORE 2,339,880 AWARDSTORE 2,659,403 SWAG STORE 3,773,696 THE AUTO STORE 2,562,711 2,237,873 26 THE ENGAGEMENT RING STORE 27 THE GENERATOR STORE 3,367,291 28 THE PAPER STORE Retail store services in the area of household accessories, storage items, storage systems, and space organizers, in International Class 42. Providing on-line retail services in the field of woodworking including woodworking tools, plans and kits, products, and related supplies and publication subscriptions via a global computer network, in International Class 35. Retail store services featuring plaques, trophies, laser engraved acrylic and stone, embroidery, digital screen printing, uniform creation, personalization and corporate identification programs and the like, in International Class 35. Online retail stores and retails stores featuring a wide variety of consumer goods, including branded and non-branded commercial items and gift cards; Online retail outlet featuring digital dollars, prize money, gift certificates, and redeemable coupons for goods and services; Online retail outlet featuring marketing goods and services of others, in International Class 35. Pre-owned motor vehicle dealerships, in International Class 35. Retail jewelry store services, in International Class 42. Retail store services featuring electric power generators for home and industrial use, in International Class 35. Retail store services, featuring paper and 1,212,989 13 14 15 16 17 18 19 20 21 22 23 24 25 Goods/Services -2- DEC. OF D. EBERHART ISO APPLE INC.’S REPLY ISO MOT. FOR PI, CASE NO. CV 11-01327 PJH 1 plastic tableware, greeting cards and party and gift wrapping supplies, in International Class 42. Retail and wholesale store services featuring automotive and vehicular systems and their components, in International Class 35. On-line retail store services featuring window blinds, curtains, decorative window treatments and related goods, in International Class 35. Online retail store featuring maps, map software, and GPS equipment, in International Class 35. 2 3 THE RADIATOR STORE 3,022,200 THE SHADE STORE 3,559,896 DIGITAL MAP STORE 3,080,989 4 5 6 7 8 Attached as Exhibit 2 are true and correct copies of the registration certificates for the above9 listed registrations and printouts of information from the electronic database records of the United 10 States Patent and Trademark Office showing the current status of each registration. 11 4. I have also reviewed the results of a search for “kindle” in active domain names on 12, the website that Amazon used to search for “appstore.” Those results 13 show 6,755 active domain names with that term. Attached as Exhibit 3 is a true and correct copy 14 of a printout of the first 3000 hits (the maximum the site appears to permit be accessed) resulting 15 from that search. 16 17 18 19 I declare under penalty of perjury of the laws of the United States that the foregoing is true and correct. Date: June 8, 2011 20 21 /s/ David R. Eberhart David R. Eberhart 22 23 24 25 26 27 28 -3- DEC. OF D. EBERHART ISO APPLE INC.’S REPLY ISO MOT. FOR PI, CASE NO. CV 11-01327 PJH

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