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

Filing 9

LODGED Proposed Declaration of David S. Gingras in Support of Surreply re: Motion to Compel re: 7 MOTION for Leave to File Surreply re: Motion to Compel. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Xcentric Ventures, LLC. (Gingras, David)

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Ecommerce Innovations L.L.C. v. Does 1-10 Doc. 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 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: (602) 248-1000 Fax: (602) 248-0522 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"). 10297-1/DSG/DSG/683580_v1 Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 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 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 10297-1/DSG/DSG/683580_v1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 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!" 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 3 10297-1/DSG/DSG/683580_v1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 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 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 10297-1/DSG/DSG/683580_v1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012 EXHIBIT A Genuine Tiffany "Atlas" Ring 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 10297-1/DSG/DSG/683580_v1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 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 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 10297-1/DSG/DSG/683580_v1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012 EXHIBIT B Genuine Tiffany "Bubbles" Ring 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 10297-1/DSG/DSG/683580_v1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 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 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 10297-1/DSG/DSG/683580_v1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012 EXHBIT C Genuine Tiffany Gold Mesh Ring 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 10297-1/DSG/DSG/683580_v1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 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 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 10297-1/DSG/DSG/683580_v1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012 EXHIBIT D Genuine Tiffany Floating Heart Pendant 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 10297-1/DSG/DSG/683580_v1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 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 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 10297-1/DSG/DSG/683580_v1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012 EXHIBIT F Genuine Tiffany Heart Tag Keychain 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 10297-1/DSG/DSG/683580_v1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 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 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 10297-1/DSG/DSG/683580_v1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012 EXHIBIT G Genuine Tiffany Dragonfly Ring 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 10297-1/DSG/DSG/683580_v1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 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 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 10297-1/DSG/DSG/683580_v1

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