Apple Computer, Inc. v. Podfitness, Inc.

Filing 38

Declaration of Andrew Abrams in Support of 37 Memorandum in Opposition to Defendants Motion to Stay filed byApple Inc.. (Attachments: # 1 Exhibit A to Declaration of Abrams# 2 Exhibit B to Declaration of Abrams# 3 Exhibit C to Declaration of Abrams)(Related document(s) 37 ) (Abrams, Andrew) (Filed on 4/17/2007)

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Apple Computer, Inc. v. Podfitness, Inc. Doc. 38 Case 4:06-cv-05805-SBA Document 38 Filed 04/17/2007 Page 1 of 5 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 David J. Miclean (#115098/miclean@fr.com) FISH & RICHARDSON P.C. 500 Arguello Street, Suite 500 Redwood City, California 94063 Telephone: (650) 839-5070 Facsimile: (650) 839-5071 Lisa M. Martens (#195824/martens@fr.com) Andrew M. Abrams (#229698/abrams@fr.com) FISH & RICHARDSON P.C. 12390 El Camino Real San Diego, California 92130 Telephone: (858) 678-5070 Facsimile: (858) 678-5099 Attorneys for Plaintiff APPLE COMPUTER, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA (OAKLAND DIVISION) APPLE COMPUTER, INC., Plaintiff, v. PODFITNESS, INC., and DOES 1-100, inclusive, Defendants. Case No. C 06-5805 SBA DECLARATION OF ANDREW M. ABRAMS IN SUPPORT OF PLAINTIFF APPLE COMPUTER, INC.'S OPPOSITION TO DEFENDANT'S MOTION TO STAY Date: May 8, 2007 Time: 1:00 pm Courtroom: 3, 3rd Floor Judge: Hon. Saundra B. Armstrong I, Andrew M. Abrams, declare under penalty of perjury that the following statements are true and correct: 1. I am an associate of the San Diego office of the law firm Fish & Richardson P.C., counsel for the plaintiff, Apple Computer, Inc. ("Apple"). 2. Except for those matters set forth on information and belief, I make this declaration of my own knowledge and could and would competently testify as to the matters set forth below if DECLARATION OF ANDREW M. ABRAMS IN SUPPORT OF PLAINTIFF APPLE COMPUTER, INC.'S OPPOSITION TO DEFENDANT'S MOTION TO STAY Case No. C 06-5805 SBA i Dockets.Justia.com Case 4:06-cv-05805-SBA Document 38 Filed 04/17/2007 Page 2 of 5 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 called upon to do so. As for the matters set forth on information and belief, I have been informed that they are true and, based upon such information, I believe them to be true. 3. 4. A true and correct copy of Apple's Complaint is attached hereto as Exhibit A. Defendant posted the following explanation for the inspiration behind the creation of Podfitness on its www.podfitness.com website: Supernova Marketplace: The Intersection of Music, iPod and Fitness When Podfitness was founded in January 2005, Apple had sold just over 10 million iPods. Sensing a major shift coming, CEO Jeff Hays gambled that the iPod-led MP3 revolution had the potential not only to change the economics of the music business, but also the fitness industry. This began a multimillion-dollar process of conceptualizing, building, and refining the idea of Podfitness. Now, in 2006, there have been over 50 million iPods sold, and the "Made for iPod" market is white-hot. In addition, the number of people focusing on fitness has never been higher: there are 40 million fitness club members in the U.S. alone. Not coincidentally, at this exact time, Podfitness is at the culmination of 18 months' efforts... https://podfitness.com/web/template/corporate?aff=home 5. Defendant ran the following full-page advertisement in the Wall Street Journal on March 16, 2006: Dear Steve Jobs, Thanks for the IPODŽ. Best, Jeff Hays P.S. Wait till you hear what we did with it! Call me, 801-990-3238 6. True and correct copies of Defendant's "silhouette" advertisements are attached hereto as Exhibit B. 7. On information and belief, Defendant used a digital copy of Apple's Earbud Trade Dress and merely removed the "r", and revised the dots to create its corporate logo. 8. Defendant has copied and prominently displayed Apple's registered IPOD mark throughout its www.podfitness.com website, including in the tagline: "Put a Personal Trainer right 2 DECLARATION OF ANDREW M. ABRAMS IN SUPPORT OF PLAINTIFF APPLE COMPUTER, INC.'S OPPOSITION TO DEFENDANT'S MOTION TO STAY Case No. C 06-5805 SBA i Case 4:06-cv-05805-SBA Document 38 Filed 04/17/2007 Page 3 of 5 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 on your IPODŽ," and the caption: " Customized IPOD Workouts" (although Defendant removed both phrases from its home page after Apple filed this lawsuit). Defendant repeatedly has displayed conspicuous photos of the IPOD product on the site, and has prominently featured images of individuals exercising while wearing Apple' s Earbud Trade Dress. On information and belief, Defendant has directly copied images of the IPOD player from Apple' s website at www.apple.com to use on its own www.podfitness.com website. 9. Defendant has used Apple' s registered IPOD mark in the metatags of each page on its www.podfitness.com website, causing Defendant' s website to appear as a " hit" when a query is conducted through a search engine for the following phrases: " IPOD workout music" ; " I POD trainer" ; " I POD workout" ; " I POD workouts" ; " IPOD workouts" ; and " IPOD trainer." 10. Defendant has been listed as a sponsored link on the search engine www.google.com in connection with the keywords " IPOD Workout" and " IPOD Fitness," causing a link to the www.podfitness.com website to appear prominently in the top banner or right margin of the screen in response to a search query for such terms. 11. Defendant registered and used the domain names ipodfitness.com and ipodworkouts.com to automatically re-direct to its homepage at www.podfitness.com. 12. On information and belief, Defendant has adopted and used in commerce, without authorization from Apple, certain aspects of Apple' s " SHUFFLE" logo (Registration No. 3,067,950) and MADE FOR IPOD logo (Application Serial No. 78/689,534). 13. On information and belief, Defendant' s Podfitness services entirely depend on Apple' s proprietary ITUNES software to store, manage, play, and control the audio content, and also to encode the mixed media into MPEG-4 format. 14. A true and correct copy of John M. Murphy, " Playing the Numbers: A Quantitative Look at Section 2(d) Cases Before The Trademark Trial and Appeal Board," 94 TMR 800 (2004), is attached hereto as Exhibit C. 15. 5 days. 3 DECLARATION OF ANDREW M. ABRAMS IN SUPPORT OF PLAINTIFF APPLE COMPUTER, INC.' S OPPOSITION TO DEFENDANT' S MOTION TO STAY Case No. C 06-5805 SBA i This Court set a jury trial for this matter to begin on June 23, 2008 for an estimated Case 4:06-cv-05805-SBA Document 38 Filed 04/17/2007 Page 4 of 5 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 16. According to the records available on the website for the United States Patent and Trademark Office, www.uspto.gov, there are currently seventeen pending Trademark Trial and Appeal Board proceedings involving Apple' s opposition of applications for " POD" -formative trademarks. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed at San Diego, California this 17th day of April, 2007. /s/ Andrew M. Abrams__________ Andrew M. Abrams 4 DECLARATION OF ANDREW M. ABRAMS IN SUPPORT OF PLAINTIFF APPLE COMPUTER, INC.' S OPPOSITION TO DEFENDANT' S MOTION TO STAY Case No. C 06-5805 SBA i Case 4:06-cv-05805-SBA Document 38 Filed 04/17/2007 Page 5 of 5

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