Ecommerce Innovations L.L.C. v. Does 1-10

Filing 13

DECLARATION of David S. Gingras in Support of 11 Sur-Reply by Objector Xcentric Ventures, LLC. to Plaintiff's 1 Motion to Compel (SAT)

Ecommerce Innovations L.L.C. v. Does 1-10

Doc. 13

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

Maria Crimi Speth, #012574 David S. Gingras, #021097 JABURG & WILK, P.C. 3200 North Central Avenue, Suite 2000 Phoenix, Arizona 85012 Tel: [phone] Fax: [phone] Attorneys for Xcentric Ventures, L.L.C. UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ECOMMERCE INNOVATIONS, L.L.C., a Nevada limited liability company, Plaintiff, v. DOES 1 through 10, Defendants. Case No.: 2:08­MC­00093 DECLARATION OF DAVID S. GINGRAS IN SUPPORT OF NON-PARTY XCENTRIC VENTURES, L.L.C.'s SUR-REPLY TO PLAINTIFF'S MOTION TO COMPEL

15 16 17 18 19 20 21 22 23 24 25 26 27 28 I, DAVID GINGRAS hereby depose and say: 1. I am a resident of the State of Arizona, am over the age of 18 years, and if

called to testify in court in this matter I could and would truthfully testify to the following. 2. I am an attorney licensed to practice law in the states of Arizona and

California. I am admitted to practice before, and am in good standing with, all state courts in Arizona and California, and the U.S. District Court for the District of Arizona, the U.S. District Court for the Central District of California, and the U.S. District Court for the Eastern District of California. 3. I am currently employed as a litigation associate attorney with the law firm

of Jaburg & Wilk, P.C., in Phoenix, Arizona and I represent non-party XCENTRIC VENTURES, L.L.C. with respect to the matter pending before this Court relating to a Motion to Compel filed by Plaintiff ECOMMERCE INNOVATIONS, L.L.C. ("Ecommerce").
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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

4.

Based on my discussions with counsel for Ecommerce and a review of the

pleadings in this case, I am aware that Ecommerce is in the business of selling jewelry from a store in California and from its website located at www.InspiredSilver.com. 5. I am aware that Ecommerce alleges that it has been defamed by certain I am

statements anonymously posted on my client's website www.RipoffReport.com.

aware that among other things, Ecommerce alleges that it has been falsely accused of "knocking off" designs of other jewelry manufacturers and "ripping off" designers. 6. I have reviewed a document filed in this matter (Doc. #5; 10/13/2008)

which purports to be a declaration signed by David Strager, the manager of Ecommerce. 7. In Paragraph 2(a) of his declaration, Mr. Strager stated, among other things,

that, "Inspired Silver [Ecommerce] does not engage in, and has never been sued for, trademark, copyright or patent infringement and does not `knock-off' proprietary designs of other manufacturers or wholesalers." 8. After reviewing Mr. Strager's declaration, on October 14, 2008 I visited

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Ecommerce's website located at www.InspiredSilver.com in order to review the products offered for sale there. 9. Immediately upon entering the site, I noticed several items of jewelry

advertised for sale that appeared to be identical to jewelry manufactured by Tiffany & Co. ("Tiffany"). These Tiffany products were notable to me because on several occasions in the past year, I have given items of authentic Tiffany jewelry as gifts and I have spent a significant amount of time reviewing Tiffany's official website located at

www.Tiffany.com while shopping for these gifts. 10. As shown in the screenshots attached hereto as Exhibits A­G and Exhibits

A1­G1, I reviewed numerous items listed for sale on Inspired Silver's website and compared them with genuine items listed for sale on Tiffany's website. Based on a short review, I located what appeared to be dozens and dozens of counterfeit Tiffany items offered for sale on Ecommerce's website. In many cases, the items offered by

Ecommerce appeared to be exact copies of genuine Tiffany items. 2
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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

11.

In some cases, the names of the items were also copied verbatim. For

example, Exhibit B shows a genuine Tiffany "Bubbles" ring with a retail price of $9,550. Exhibit B-1 reflects a ring called "The Bubbles Ring" which appears to be an exact copy of the genuine Tiffany "Bubbles" ring. Inspired Silver offers this counterfeit ring for sale at a retail price of $29.95. 12. In some cases, Inspired Silver appears to actively promote the fact that its For

products are fake copies of genuine articles from other famous manufacturers.

example, Exhibit A depicts a genuine Tiffany "Atlas" ring which contains a band of Roman numerals with three diamonds for $1,650. 13. As reflected in Exhibit A-1, Inspired Silver offers what appears to be an

exact copy of the Tiffany "Atlas" ring at a retail price of $25.95. The description listed on Inspired Silver's website states, in part: "This new style will be the rage this season. Enjoy this comfortable fitting ring that looks like the real thing!"

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Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct.

Executed on: October 15, 2008

___________________________ DAVID GINGRAS

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

CERTIFICATE OF SERVICE I hereby certify that on October 15, 2008 I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing, and for transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Donnelly A. Dybus, Esq. BUCHALTER NEMER 16435 North Scottsdale Road, Suite 440 Scottsdale, AZ 85254-1754 Attorneys for Plaintiffs

With a COPY of the foregoing delivered to: Honorable David G. Campbell United States District Court District of Arizona s/Debra Gower

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

EXHIBIT A Genuine Tiffany "Atlas" Ring

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

EXHIBIT A-1 Counterfeit Tiffany "Atlas" Ring by Inspired Silver

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

EXHIBIT B Genuine Tiffany "Bubbles" Ring

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

EXHIBIT B-1 Counterfeit Tiffany "Bubbles" Ring by Inspired Silver

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

EXHBIT C Genuine Tiffany Gold Mesh Ring

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

EXHIBIT C-1 Counterfeit Tiffany Gold Mesh Ring by Inspired Silver

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

EXHIBIT D Genuine Tiffany Floating Heart Pendant

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

EXHIBIT D-1 Counterfeit Tiffany Floating Heart Pendant by Inspired Silver

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

EXHIBIT F Genuine Tiffany Heart Tag Keychain

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

EXHIBIT F-1 Counterfeit Tiffany Heart Tag Keychain by Inspired Silver

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

EXHIBIT G Genuine Tiffany Dragonfly Ring

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

EXHIBIT G-1 Counterfeit Tiffany Dragonfly Ring by Inspired Silver

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