Oracle Corporation et al v. SAP AG et al

Filing 817

Declaration of Tharan Gregory Lanier in Support of 816 Defendants' Cross Motion for Partial Summary Judgment and Opposition to Plaintiffs' Motion for Partial Summary Judgment (FILED PURSUANT TO D.I. 810) filed by SAP AG, SAP America Inc, Tomorrownow Inc. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48, # 49 Exhibit 49, # 50 Exhibit 50, # 51 Exhibit 51, # 52 Exhibit 52, # 53 Exhibit 53)(Related document(s) 810 ) (Froyd, Jane) (Filed on 8/27/2010) Modified on 8/30/2010 (vlk, COURT STAFF).

Oracle Corporation et al v. SAP AG et al

Doc. 817 Att. 39

EXHIBIT 39

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Page 1 Not Reported in F.Supp.2d, 2008 WL 144693 (N.D.Cal.) (Cite as: 2008 WL 144693 (N.D.Cal.)) January 11, 2008, and rules as follows. Only the Westlaw citation is currently available. United States District Court, N.D. California. FLOTSAM OF CALIFORNIA, INC., dba Noland's on the Wharf and Shoreline Surf Shop, Plaintiff, v. HUNTINGTON BEACH CONFERENCE AND VISITORS BUREAU, Defendant. No. C 06-7028 MMC. Jan. 10, 2008. Theodore T. Herhold, Steven William Flanders, Townsend and Townsend and Crew LLP, Palo Alto, CA, Anthony John Malutta, Marie C. Seibel, Townsend and Townsend and Crew LLP, San Francisco, CA, for Plaintiff. Richard Paul Sybert, Ana Claudia Casanov Guedes, Gordon & Rees LLP, Maha Sarah, San Diego, CA, Dion N. Cominos, Gordon & Rees LLP, San Francisco, CA, Douglas Patrick Smith, Gordon & Rees LLP, Newport Beach, CA, for Defendant. Flotsam seeks summary judgment on any claim the Bureau has made herein in which the Bureau asserts ownership of a "Surf City" mark, as opposed to the Bureau's claims based on the Bureau's asserted ownership of a "Surf City USA" mark. In response, the Bureau argues that it is not claiming herein ownership of a "Surf City" mark. Flotsam's counterclaims do not allege ownership of a "Surf City" mark. FN1 Further, there is no showing any discovery has occurred on any claim pertaining to a "Surf City" mark. Finally, although Flotsam argues that, in the absence of a grant of summary judgment on any claim based on the Bureau's ownership of a "Surf City" mark, Flotsam could be subject in the future to a suit in which the Bureau claims ownership of a "Surf City" mark, the Court lacks jurisdiction to resolve a matter not raised by the instant pleadings. See Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1138 (9th Cir.2000) (en banc) (holding federal courts may not "issue advisory opinions" or "declare rights in hypothetical cases"). FN1. In Defendants Answer to First Amended Complaint [and] Counterclaims, filed February 12, 2007, the Bureau alleges in ¶ 48 that "Flotsam's actions in designing, manufacturing, packaging, selling, or distributing goods under the `Surf City' mark, without consent of the Bureau, constitutes false designation of origin and trademark infringement ...." Although such paragraph could be interpreted as alleging the Bureau owns the mark "Surf City," the Bureau, on November 13, 2007, and in response to Flotsam's stated concern as whether such a claim was being alleged, filed a "Notice of Errata" on November 13, 2007, stating that the phrase " `Surf City' mark" in ¶ 48 was a typographical error, and that the intended phrase was " `Surf

ORDER DENYING PLAINTIFF/ COUNTERDEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT; VACATING HEARING MAXINE M. CHESNEY, District Judge. *1 Before the Court is plaintiff/counterdefendant Flotsam of California, Inc.'s ("Flotsam") Motion for Partial Summary Judgment, filed November 21, 200 7. Defendant/counterclaimant Huntington Beach Conference and Visitors Bureau ("the Bureau") has filed opposition, to which Flotsam has replied. Having read and considered the papers filed in support of and in opposition to the motion, the Court deems the matter suitable for decision on the papers, VACATES the hearing scheduled for

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Page 2 Not Reported in F.Supp.2d, 2008 WL 144693 (N.D.Cal.) (Cite as: 2008 WL 144693 (N.D.Cal.)) City USA' mark." Accordingly, the motion is hereby DENIED. IT IS SO ORDERED. N.D.Cal.,2008. Flotsam of California, Inc. v. Huntington Beach Conference and Vistors Bureau Not Reported in F.Supp.2d, 2008 WL 144693 (N.D.Cal.) END OF DOCUMENT

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