John Beck Amazing Profits, LLC v. Google Inc. et al

Filing 61

MOTION to Exclude the Expert Report and Opinion of Thomas J. Maronick and Brief in Support by AOL LLC, Google Inc.. (Attachments: # 1 Declaration of Carl Butzer, # 2 Exhibit A to Declaration of Carl Butzer part 1, # 3 Exhibit A to Declaration of Carl Butzer part 2, # 4 Exhibit A to Declaration of Carl Butzer part 3, # 5 Exhibit A to Declaration of Carl Butzer part 4, # 6 Exhibit A to Declaration of Carl Butzer part 5, # 7 Exhibit A to Declaration of Carl Butzer part 6, # 8 Exhibit A to Declaration of Carl Butzer part 7, # 9 Exhibit A to Declaration of Carl Butzer part 8, # 10 Exhibit A to Declaration of Carl Butzer part 9, # 11 Exhibit A to Declaration of Carl Butzer part 10, # 12 Exhibit A to Declaration of Carl Butzer part 11, # 13 Exhibit A to Declaration of Carl Butzer part 12, # 14 Exhibit A to Declaration of Carl Butzer part 13, # 15 Exhibit A to Declaration of Carl Butzer part 14, # 16 Exhibit B to Declaration of Carl Butzer, # 17 Declaration of Itamar Simonson, # 18 Exhibit 1 to Declaration of Itamar Simonson, # 19 Text of Proposed Order)(Babcock, Charles)

John Beck Amazing Profits, LLC v. Google Inc. et al Doc. 61 Att. 13 287 1 2 3 4 5 6 7 right? A. Q. Yes. If they answered no were they then excluded from the survey? A. Q. A. That's correct. Tell me why you did that? As I said earlier today when you 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 asked me about this, that I thought the universe for the Trek bicycle should be people who, number one, own a bicycle, because they're in my judgment more interested in buying -- trading up to a higher end bicycle such as a Trek. They may more likely be -- they own a bicycle and may be more likely to be aware of the brand of the bicycles, including Trek, which I felt was important if I'm going to be asking questions about it. Q. Do you know or have you done any work to ascertain how many folks who buy Trek bicycles are first time bike purchasers? A. Q. No, I do not. Do you know how many people who buy Trek bicycles own no bike when they buy their first Trek bike? A. No, I don't. But, Again, my 800-567-8658 Veritext Corporate Services 973-410-4040 Dockets.Justia.com 288 1 2 3 4 concern was are they aware of the Trek more than anything else. this would help me get to. Q. Was it your view that a person who That's what I thought 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 owns at least one bicycle is more likely to buy a Trek bike than a person who doesn't own a bicycle at all? A. Q . I really never thought about that. All right, sir. Do you have an opinion one way or another? A. Q. A. I haven't thought about it. I take it that's a no? Right. As I sit here right now, no, I don't have an opinion. Q your bicycle. Why was that question important? A. My understanding about Trek Question 2, how often do you ride bicycles are, again, for more serious bikers. Bikers being bicyclists as opposed to motorcyclists. So I wanted people who at least rode their bicycles at least more than at least some. That's why I excluded the never category. Q. Were you the one that came up with the search term Trek for this survey? Veritext Corporate Services 973-410-4040 800-567-8658 289 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. No. I think that Mr. Meyer is the one that suggested that. Apparently -- I'm not a bicyclist. He's more familiar with bicycles and bicycle brands. Q. A. Is he a Trek owner? I have no idea. Now, question number 4, if a Q . person was answering this survey, at least when they've gone through question number 4 they haven't been told or they don't know whether or not this survey has anything to do with Trek bikes; is that true? A. Q. That's correct. Indeed, the first question that introduces Trek at all would be question number 7; right? A. That's correct, because the screener questions before that, which are have you ever used it to find information about bicycles you might consider purchasing, again, and then would you consider using it to get information about bicycles. So those are screener questions to make sure I've got people in my judgment who are in that -- are likely to look to the Internet as a vehicle to get Veritext Corporate Services 800-567-8658 973-410-4040 292 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. 4 No, there wasn't. So you're simply asking, if you respond and are in the market for a new bicycle would you consider buying a Trek under those circumstances, based upon that h true? A. Q. Yes. Why didn't you simply ask them if othetical; they're likely to buy a new bicycle in the next 12 months? A. Again, my purpose wasn't to find just people who are going to be buying in a short period of time. What I really wanted was to get people who would at least consider buying a bicycle so that I could then get them to look at the Internet search engine results page. Q. Let's go to page 70 of Exhibit 2. Do you see that, Professor? A. Q. Yes. At the top of the page 70 it says Do you see that? question, title. A. Q. Yes. And that's where you -- you didn't write anything in there or add any language? A. That's a mistake. That would -- Veritext Corporate Services 800-567-8658 973-410-4040 302 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. MORAN: Q. Are you familiar with the term, THE WITNESS: They permit it by selling those AdWords and for companies who, in fact, buy the AdWords for their own -- buy the AdWords for their own sponsored links on those search results pages. They're creating, yes, I can buy that and, in fact, the results of the survey show that consumers believe that they're going to be able to buy the searched for products or services or there's a relationship. And this is what was found in the generic survey and it was found in the hypothetical survey. BY MR. MORAN: Q. Has Google created that expectation, in your view, by any other action other than what you just told me? MR. FENSTER: Object to form. THE WITNESS: I don't know. "question order effects"? A. Q. A. Yes. What does that mean? The extent to which the order of the questions may bias the results. Q. Are you familiar with an "ever 800-567-8658 Veritext Corporate Services 973-410-4040 303 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ready format"? I'm sure you are? A. Q. before? A. Q. I don't recall. Do you think it is good practice Yes. Have you used an ever ready format to allow in initial interest confusion or likelihood of confusion surveys to include questions allowing respondents to explain their answers in their own words? A. In certain types of surveys that may be appropriate for, certainly for advertising surveys to ask consumers what they take from an ad, but when the issue is in this case -- as in this case an expectation survey, there's -- I saw no reason to have those additional open-ended questions. The questions would have been why do you think that. That kind of question. And I thought about that but felt that I didn't need it because what were they going to say? I thought it would be simply because it's a sponsored link. Q . That was your assumption or supposition; right? MR. FENSTER: Object to form. Veritext Corporate Services 800-567-8658 973-410-4040