Gibson Guitar Corp. v. Ebay Inc., et al

Filing 4

Filed (ECF) Appellant Ebay Inc. EMERGENCY Motion to stay lower court action. Date of service: 12/22/2010. [7590522] (JR)

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Gibson Guitar Corp. v. Ebay Inc., et al Doc. 4 Att. 2 EXHIBIT A Dockets.Justia.com Case 2:10-cv-08884-RGK -RZ Document 32 Filed 12/08/10 Page 1 of 12 Page ID #:696 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 26 27 28 Bingham McCutchen LLP MARY T. HUSER (SBN 136051) mary.huser@bingham.com LISA CHIN (SBN 259793) lisa.chin@bingham.com 1900 University Avenue East Palo Alto, CA 94303 Telephone: 650.849.4400 Facsimile: 650.849.4800 Bingham McCutchen LLP JEFFREY ROSENFELD (SBN 221625) jeffrey.rosenfeld@bingham.com 1620 26th Street, Fourth Floor, North Tower Santa Monica, CA 90404 Telephone: 310.907.1000 Facsimile: 310.907.2000 Bingham McCutchen LLP JOHN POLITO (SBN 253195) john.polito@bingham.com Three Embarcadero Center San Francisco, CA 94111 Telephone: 415.393.2000 Facsimile: 415.393.2286 Attorneys for Defendant eBay Inc. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION GIBSON GUITAR CORP., a Delaware corporation, Plaintiff, v. WOWWEE USA, INC., ET AL. Defendants. No. 2:10-cv-08884-RGK (RZx) DECLARATION OF KAI CURTIS IN SUPPORT OF OPPOSITION TO SHOW CAUSE RE: PRELIMINARY INJUNCTION BY DEFENDANT EBAY, INC. Judge: Hon. R. Gary Klausner Courtroom: 850 A/73579322.1/2024670-0000353113 DECLARATION OF KAI CURTIS IN SUPPORT OF OPPOSITION TO SHOW CAUSE RE: PRELIMINARY INJUNCTION BY DEFENDANT EBAY, INC. 1 of 31 Case 2:10-cv-08884-RGK -RZ Document 32 Filed 12/08/10 Page 2 of 12 Page ID #:697 2 of 31 Case 2:10-cv-08884-RGK -RZ Document 32 Filed 12/08/10 Page 3 of 12 Page ID #:698 3 of 31 Case 2:10-cv-08884-RGK -RZ Document 32 Filed 12/08/10 Page 4 of 12 Page ID #:699 4 of 31 Case 2:10-cv-08884-RGK -RZ Document 32 Filed 12/08/10 Page 5 of 12 Page ID #:700 5 of 31 Case 2:10-cv-08884-RGK -RZ Document 32 Filed 12/08/10 Page 6 of 12 Page ID #:701 6 of 31 Case 2:10-cv-08884-RGK -RZ Document 32 Filed 12/08/10 Page 7 of 12 Page ID #:702 7 of 31 Case 2:10-cv-08884-RGK -RZ Document 32 Filed 12/08/10 Page 8 of 12 Page ID #:703 8 of 31 Case 2:10-cv-08884-RGK -RZ Document 32 Filed 12/08/10 Page 9 of 12 Page ID #:704 9 of 31 Case 2:10-cv-08884-RGK -RZ Document 32 Filed 12/08/10 Page 10 of 12 Page ID #:705 10 of 31 Case 2:10-cv-08884-RGK -RZ Document 32 Filed 12/08/10 Page 11 of 12 Page ID #:706 11 of 31 Case 2:10-cv-08884-RGK -RZ Document 32 Filed 12/08/10 Page 12 of 12 Page ID #:707 12 of 31 Case 2:10-cv-08884-RGK -RZ Document 32-1 Filed 12/08/10 Page 1 of 9 Page ID #:708 EXHIBIT A 13 of 31 Case 2:10-cv-08884-RGK -RZ Document 32-1 Filed 12/08/10 Page 2 of 9 Page ID #:709 14 of 31 Case 2:10-cv-08884-RGK -RZ Document 32-1 Filed 12/08/10 Page 3 of 9 Page ID #:710 15 of 31 Case 2:10-cv-08884-RGK -RZ Document 32-1 Filed 12/08/10 Page 4 of 9 Page ID #:711 16 of 31 Case 2:10-cv-08884-RGK -RZ Document 32-1 Filed 12/08/10 Page 5 of 9 Page ID #:712 17 of 31 Case 2:10-cv-08884-RGK -RZ Document 32-1 Filed 12/08/10 Page 6 of 9 Page ID #:713 18 of 31 Case 2:10-cv-08884-RGK -RZ Document 32-1 Filed 12/08/10 Page 7 of 9 Page ID #:714 19 of 31 Case 2:10-cv-08884-RGK -RZ Document 32-1 Filed 12/08/10 Page 8 of 9 Page ID #:715 20 of 31 Case 2:10-cv-08884-RGK -RZ Document 32-1 Filed 12/08/10 Page 9 of 9 Page ID #:716 21 of 31 Case 2:10-cv-08884-RGK -RZ Document 32-2 Filed 12/08/10 Page 1 of 6 Page ID #:717 EXHIBIT B 22 of 31 eBay View About Me for gibsonvero Case 2:10-cv-08884-RGK -RZ Document 32-2 Page 1 of 5 Filed 12/08/10 Page 2 of 6 Page ID #:718 My eBay Sell Community Contact us Help 18 Advanced CATEGORIES FASHION MOTORS Welcome! Sign in or register. All Categories 6 Search DEALS CLASSIFIEDS Home > Community > About Me > gibsonvero About Me: gibsonvero ( 0 ) Gibson Guitar Corp. The History For more than 100 years, Gibson Guitar Corp. has been engaged in the business of designing, manufacturing and distributing for sale a variety of musical instruments, including string instruments such as mandolins and banjos, as well as accessories, such as amplifiers and strings, throughout the United States and internationally. Gibson is best known for its guitars, including both acoustic and electric guitars. Gibson has designed and produced industry-standard models in every major style of fretted instrument, the most famous of which is the LES PAULguitar, introduced in 1952. The Gibson F-5 Master Model mandolin, Mastertone banjo, Flying V, Explorer, ES-335, SG and SJ-200 guitars and DOBRO brand resonator guitar are among Gibson best-known and most influential models. Gibson has been headquartered in Nashville since 1984. Our Registered Trademarks Over the years, Gibson has developed goodwill in its instruments and the trademarks for those instruments. Gibson's trademarks are so valuable and important because guitar buyers associate these trademarks with the high quality of Gibson products. Gibson provides the following list of some of its trademarks: MARK Maestro & Design Gibson Slingerland Fretless Wonder U.S. TRADEMARK REGISTRATION NUMBER 328,690 510,594 615,793 626,204 23 of 31 http://members.ebay.com/ws/eBayISAPI.dll?ViewUserPage&userid=gibsonvero 12/7/2010 eBay View About Me for gibsonvero Case 2:10-cv-08884-RGK -RZ Document 32-2 Gibson Dove & Design Stereo & Design Les Paul Dobro Epiphone Gibson The Ripper Design Split Diamond Design Pineapple Design Split Diamond Duolian "EPI" Design Peghead (Dove Wing) Custom L-5 & Design Design Bell Citation S-G Dobro and Design The Paul Byrdland Flying V Striped Guitar Challenger Magnum Victory Map Design Guitar (Steinberger) Steinberger Les Paul CMI CMI & Design Gibson Chet Atkins Country Gentlemen Design Peghead Profile (Explorer) Power Lines Maestro Brite Wires American Made/World Played Design Guitar Body (Les Paul) Historic Collection Tour Wear E Stylized Headjammer Legrand The Mark of a Great Guitarist Accu-Voice OB-MX Drummer Vintage Re-issue Tobias Kramer OBL "Moustache" Bridge Design Flatiron El Capitan Hummingbird Page 2 of 5 Filed 12/08/10 Page 3 of 6 Page ID #:719 866,698 898,315 905,145 918,934 950,801 964,189 989,617 1,005,289 1,008,797 1,008,798 1,008,799 1,009,338 1,016,321 1,020,485 1,021,477 1,022,637 1,027,899 1,045,872 1,134,094 1,147,147 1,167,202 1,216,644 1,288,465 1,318,020 1,322,068 1,324,389 1,391,541 1,394,829 1,441,155 1,539,282 1,541,051 1,543,093 1,545,311 1,557,887 1,557,888 1,567,052 1,677,559 1,706,618 1,725,491 1,745,731 1,782,606 1,798,959 1,815,966 1,833,789 1,842,807 1,866,940 1,870,490 1,870,491 1,871,892 1,872,083 1,872,419 1,885,979 1,888,387 1,899,598 1,911,282 1,913,232 1,928,040 24 of 31 http://members.ebay.com/ws/eBayISAPI.dll?ViewUserPage&userid=gibsonvero 12/7/2010 eBay View About Me for gibsonvero Case 2:10-cv-08884-RGK -RZ Document 32-2 Page 3 of 5 Filed 12/08/10 Page 4 of 6 Page ID #:720 1,931,670 1,931,671 1,934,543 1,937,145 1,957,393 1,967,503 1,969,929 1,973,045 1,979,647 1,997,678 2,007,277 2,008,143 2,016,857 2,034,846 2,051,790 2,053,805 2,069,841 2,092,075 2,094,848 2,135,333 2,150,184 2,177,027 2,215,791 2,273,225 2,293,467 2,295,545 2,298,816 2,363,070 2,367,539 2,374,612 2,386,273 2,395,086 2,419,785 2,482,205 2,482,206 2,485,085 2,501,101 2,508,455 2,528,669 2,534,993 1,319,300 2,568,567 2,599,297 2,599,298 2,611,145 2,624,523 2,624,578 2,633,416 2,641,548 2,644,117 2,679,139 2,684,617 2,696,053 2,705,574 2,731,881 2,731,882 2,738,824 Dove Design Peghead (Reverse Explorer) Custom L-5 Epiphone Design Peghead (Stairstep) Radio King Wes Montgomery Orville Design Pickguard (Terraced) Design Guitar (ES-335) OB Logo Design Peghead (Cropped Ear) '57 Classic Design Guitar (Flying V) Design Guitar (Explorer) Nighthawk GMI Blues Hawk Studio King Design Cloud Gibson Design Guitar Body (SG) Spirit Dual-Rail Burstbucker Quad-Rail Ear Plug Design Guitar Peghead Oberheim Mo' Baby Direct Connect Swingmaster J-45 J-50 Musicyo.com Design Guitar Pickguard Goldentone "Top Belly" Bridge Design Design Guitar Body (Mo' Baby) Valley Arts Custom Direct ES FV Goldtone Maestro and Design Maestro Design Guitar Body (Moderne) Explorer Pure Design of a Guitar Peghead Magic Banana Headstock Headstock Design SJ AJ GIBSON PURE Valley Arts 25 of 31 http://members.ebay.com/ws/eBayISAPI.dll?ViewUserPage&userid=gibsonvero 12/7/2010 eBay View About Me for gibsonvero Case 2:10-cv-08884-RGK -RZ Document 32-2 Page 4 of 5 Filed 12/08/10 Page 5 of 6 Page ID #:721 2,751,275 2,843,434 2,843,677 2,860,682 2,867,454 2,870,036 2,885,394 Gibson Pure (and design) Design of Shield and Dog LPX Original Hound Dog Double Ball Miscellaneous Design of Guitar Body Gibson will terminate an auction pursuant to eBay's Verified Rights Owner (VeRO) Program if it attempts to auction (1) any items (guitars, decals, merchandise, etc) that contain the unauthorized 26 of 31 http://members.ebay.com/ws/eBayISAPI.dll?ViewUserPage&userid=gibsonvero 12/7/2010 eBay View About Me for gibsonvero Case 2:10-cv-08884-RGK -RZ Document 32-2 Page 5 of 5 Filed 12/08/10 Page 6 of 6 Page ID #:722 use of our trade names, trade dress, and logos from all of our Gibson family of brands (see complete list above). This includes counterfeits and copies, or (2) a guitar, guitar part or guitar accessory using the phrase "Gibson-style," "Les Paul-style", "Gibson Replica" or some similar designation in the title of or description of the auction. Gibson randomly monitors auctions. Gibson requests that eBay, under the terms of the VeRO program and pursuant to paragraph 5.4 of your own eBay User Agreement, terminate that auction when a problem is discovered. Further information about Gibson, and its products, including answers to frequently asked questions, may be found at Gibson web-site, www.Gibson.com. To learn how to spot a fake Gibson read this feature at Gibson.com. 007 Gibson Guitar Corp The above page is maintained by: gibsonvero ( 0 ) Where would you like to go next? Create or edit my About Me page View Reviews & Guides by this member View the Member Profile Feedback Forum | Discussion Boards | Groups | Answer Center | Chat Rooms | Community Values About eBay | Security Center | Buyer Tools | Policies | Stores | Site Map | eBay official time Copyright � 1995-2010 eBay Inc. All Rights Reserved. Designated trademarks and brands are the property of their respective owners. Use of this Web site constitutes acceptance of the eBay User Agreement and Privacy Policy. Summary Watch List Bids/Offers Messages All Lists Won/Purchased Selling Saved Searches Sell an item eBay Stores Seller Information Center What's Hot Seller tools Shipping center Apps Center Sell for Charity 27 of 31 http://members.ebay.com/ws/eBayISAPI.dll?ViewUserPage&userid=gibsonvero 12/7/2010 Case 2:10-cv-08884-RGK -RZ Document 32-3 Filed 12/08/10 Page 1 of 2 Page ID #:723 EXHIBIT C 28 of 31 Case 2:10-cv-08884-RGK -RZ Document 32-3 Page 1 of 1 Filed 12/08/10 Page 2 of 2 Page ID #:724 Products St o re New s-L ifest yle Lessons Community 24/7 Support SEARCH Gibson Error Page We're sorry! The page you're looking for can't be found. PLEASE USE THE ABOVE SEARCH, OR CONTACT US AT: WEBMASTER@GIBSON.COM. Error Code: 404 Electric Guitars Gibson USA Gibson Custom Epiphone Kramer Steinberger Tobias Valley Arts Maestro Pianos Baldwin Baldwin Custom Store Consumer Electronics Gear Hardware Lifestyle Features News Instruments & Gear Events Blogs Contests Free Music Gibson Foundation Make a Donation Initiatives Partners News Customer Service 24/7 Support About Us Careers at Gibson Contact Us FAQ Amps & Gear Gibson Epiphone Echoplex Lifestyle Pickups Robot Parts Community Forums Talk to Henry Dealer Events Facebook Gibson App Tech Tips Serial Numbers How to Buy a Guitar Warranty Registration Warranty Service Info Repair and Restoration Talk to Us Dealers Jukeboxes Find a Dealer Buy Online Acoustic 5 Star dealers Accessories Pickups Strings Gibson Original Dealers Baldwin Piano Dealers Wurlitzer Dealers Become a Dealer Extras Video Credits Acoustic Instruments Gibson Acoustic Gibson Original Epiphone Wurlitzer Free Lessons Arlen Roth Lessons Full Courses Lesson of the Week Lennon Bus RSS Feeds Twitter YouTube GuitarTown Austin London Drums Slingerland Replacement Parts Care Products MaGIC Locations Gibson Custom Memphis Gibson Amphitheatre Retail Center - Memphis Miami Nashville Orlando Sunset Strip Cleveland Rocks Copyright � 2010 Gibson Guitar Corp. All rights reserved. Privacy Policy | Terms and Conditions 29 of 31 http://www.gibson.com/Backstage%20Pass/200706/Counterfeit%20Gibsons 12/7/2010 Case 2:10-cv-08884-RGK -RZ Document 32-4 Filed 12/08/10 Page 1 of 2 Page ID #:725 EXHIBIT D 30 of 31 Gibson Support - FAQs Case 2:10-cv-08884-RGK -RZ Document 32-4 Page 1 of 1 Filed 12/08/10 Page 2 of 2 Page ID #:726 Products St o re New s-L ifest yle Lessons Community 24/7 Support SEARCH Gibson Support The Customer Service and Support FAQ We talk to Gibson Family owners and enthusiasts all over the world, and have compiled the most often asked questions with answers for you to view. If you have a specific topic that you do not see addressed here, call 1.800.4GIBSON OR email us. We will respond as quickly as possible. � Counterfeit guitars In our constant effort to stand by our consumers, protect them, and bring them the finest products in the world, Gibson Guitar takes a firm and aggressive stance against all makers of counterfeit guitars and their distribution channels. These low-budget, inferior guitars are pale imitations of the quality, performance, and craftsmanship of real Gibsons. We continue to hear complaints from consumers and fans who have purchased one of these guitars from websites and auction sites thinking they were getting a real Gibson. The makers and sellers of counterfeits are scamming our global family of musicians and Gibson does not take it lightly. We would like to urge all our consumers not to be taken in by the works of dishonest sellers. If a guitar is being sold for a fraction of what it would typically sell for, it is likely not a real Gibson guitar. The best way for consumers to protect themselves against fraud is to purchase your Gibson guitar from an authorized dealer, or consult one in advance. You can also call Gibson Guitar Customer Service at 1-800-444-2766--24 hours a day, seven days a week--for any inquiries or advice. We strongly urge all consumers to be careful and aware of this worldwide problem. At Gibson, we care about our consumers, our legacy, and our name. Remember, only a real Gibson is good enough. � � � � � � � � � � � � � � � � � � � � � � � Is the warranty transferable? I did not receive an owner's manual with my instrument - is one available? How do I obtain warranty service? My instrument has small cracks in the finish � what causes this? Is it covered under the warranty? What is "stand damage"? What can I do to prevent tarnish on the hardware? How much is my Gibson guitar, amplifier, or mandolin worth? How can I date/ID my instrument by serial number? How can I find a dealer in my area? Do you have an online warranty registration? I've placed my order through an authorized dealer, but how do I check on it's status? Does Gibson sell direct to the public? Does Gibson offer factory tours? Why are there not more left handed models? I have a Gibson instrument or amplifier and need a schematic � are they available? How can I locate parts for instruments that are no longer in production? The combination lock on my case won't open, how can I open it without damaging or removing the lock? I would like a replacement COA (certificate of authenticity) for my instrument. How can I obtain this? Does Gibson offer product donations? I purchased an Epiphone Les Paul Pee Wee model and it won't stay in tune - how do I keep this in tune? How do I receive a product endorsement from Gibson? How do I become an authorized dealer? Which strings do you recommend for my Epiphone instrument? Customer Service 24 hours 7 days a week Products | Features | Contests | Credits | Contact Us | FAQ v 1.0 31 of 31 http://www.gibson.com/en-us/Support/FAQs/ 12/7/2010

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