Petroliam Nasional Berhad v. GoDaddy.com, Inc.

Filing 143

Declaration of Perry Clark in Support of 134 MOTION for Partial Summary Judgment re Liability for Contributory Cybersquatting as to PETRONASTOWERS.NET filed byPetroliam Nasional Berhad. (Attachments: # 1 Exhibit A, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, *** # 27 Exhibit 26 FILED IN ERROR. DOCUMENT LOCKED. DOCUMENT TO BE REFILED LATER. *** , # 28 Exhibit 27, # 29 Exhibit 28)(Related document(s) 134 ) (Clark, Perry) (Filed on 11/25/2011) Modified on 11/28/2011 (ewn, COURT STAFF).

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Ex. 25

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CLARK DECL. ISO REPLY ISO MTN. PART. SUMMARY JUDGMENT
Case No: 09-CV-5939 PJH

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION
PETROLIAM NASIONAL BERHAD
(PETRONAS),
Plaintiff,
CASE NO. 09-CV-5939PJH
vs.
GODADDY.COM, INC.,
Defendant.
_____________________________/

::: CONFIDENTIAL :::

30(b)(6) DEPOSITION OF JESSICA HANYEN

DATE:

Wednesday, October 12, 2011

TIME:

11:58 a.m.

LOCATION:

BALLARD SPAHR, LLP
1 East Washington Street, Suite 2300
Phoenix, Arizona 85004

REPORTED BY: JANICE HARRINGTON, RPR, CRR, CLR
AZ Certified Court Reporter No. 50844
Registered Professional Reporter
Certified Realtime Reporter
Certified LiveNote Reporter
MBreporting
111 Deerwood Road, Suite 200
San Ramon, California 94583
APP174

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::: APPEARANCES :::

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FOR PETROLIAM NASIONAL BERHAD (PETRONAS) PLAINTIFF:
Law Offices of Perry R. Clark
By: Perry R. Clark, Attorney At Law
825 San Antonio Road
Palo Alto, California 94303
[phone]
[e-mail]

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FOR GODADDY.COM, INC., DEFENDANT:
Wilson Sonsini Goodrich & Rosati
By: David L. Lansky, Attorney At Law
650 Page Mill Road
Palo Alto, California 94304-1050
[phone]
[e-mail]:

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APP175

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::: INDEX OF EXAMINATIONS :::

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EXAMINATION BY:

PAGE

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MR. CLARK

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::: INDEX OF REQUESTS :::
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PAGE

LINE

REQUEST

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None

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APP176

Page 17
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Q.

Okay.

And the section of that says,

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"Determine if the website is hosted at one of the Go

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Daddy group's companies by checking the IP address."

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Do you see that?

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A.

Yes.

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Q.

How would someone at Go Daddy applying

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this policy determine if a website is hosted at one

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of the Go Daddy group companies?

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A.

We would basically do what's called a

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Whois look up.

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the registrant information like a standard one.

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one is specific for hosting.

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company that the domain name or the website is hosted

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with.

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And it is not one that's specific to
This

That would tell us what

If it was showing that it was hosted with

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a Go Daddy IP address once we did that look-up, we

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would then check our tools to see if we can identify

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the account which would tell us with 100% certainty

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that it is hosted with our company.

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Q.

Okay.

And then on Section 1.1.1 which is

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not hosted, send "Not hosted template to the

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complainant."

Do you see that?

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A.

Yes.

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Q.

If Go Daddy applying this policy

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determines that the website is not hosted at Go
APP177

Page 18
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Daddy, what does Go Daddy do?
A.

Well, the not hosted template sent out to

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the complainant, that contains advice that if they

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wish to address the website content, that they need

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to address it to the hosting provider.

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advises them that if this is a domain name specific

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issue, that they would need to refer to the Uniform

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Domain Name Dispute Resolution Policy.

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Q.

Okay.

And it also

Now, if Go Daddy determines that a

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website is not hosted, will Go Daddy go through the

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process in Section 1.2 of this policy of determining

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if the trademark is registered?

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A.

No.

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Q.

Okay.

And Go Daddy also if it determines

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that a website is not hosted at Go Daddy, it will not

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go through the process 1.3 of determining if the

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claim infringement is identifiable?

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A.

Correct, yes.

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Q.

And it also won't go through the process

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in 1.4 of determining if the claim is complete?

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A.

Yes.

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Q.

Okay.

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And then it won't go through step

1.5 of opening a valid trademark claim?

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A.

Correct.

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Q.

Okay.

So with respect to complaints
APP178

Page 19
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regarding websites that Go Daddy determines are not

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hosted by Go Daddy, Go Daddy doesn't investigate

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whether or not there is identifiable trademark

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infringement; is that correct?

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MR. LANSKY:

Object to the form.

Asked

and answered.

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THE WITNESS:

Since it's not actionable,

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we don't make a determination.

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BY MR. CLARK:

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Q.

Okay.

So if a website is not hosted at

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Go Daddy, there very well may be trademark

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infringement; is that correct?

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MR. LANSKY:

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THE WITNESS:

Object to the form.
There could be something

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that would be identified by the hosting company as

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trademark infringement, but we don't make a

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determination as to whether or not that it exists.

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We simply give them the proper channels to pursue the

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issue.

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BY MR. CLARK:

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Q.

Okay.

And do you know why Go Daddy will

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not -- Go Daddy doesn't carry out any of these steps

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regarding trademark infringement if the website is

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not hosted by Go Daddy?

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MR. LANSKY:

Object to the form.
APP179

Page 28
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A.

Yes.

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Q.

So Go Daddy wouldn't have -- in

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evaluating the complaint for petronastowers.net, Go

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Daddy wouldn't have considered the domain name

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petronastower.net had been ordered transferred by a

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court?

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A.

No, because it would have been the same

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thing where we would have followed our standard

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operating procedure.

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Q.

And it wouldn't have mattered that the

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domain name petronastower.net was transferred by a

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court because the court found trademark infringement?

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A.

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No.
MR. LANSKY:

Object to the form.

BY MR. CLARK:
Q.

And it wouldn't matter that the

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petronastower.net domain name listed the same

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registrant?

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MR. LANSKY:

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THE WITNESS:

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Object to the form.
No.

BY MR. CLARK:
Q.

And that it was forwarding to the same

website?

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MR. LANSKY:

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THE WITNESS:

Object to the form.
No.
APP180

Page 51
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pretty steady.

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Q.

Okay.

And do you have any idea how many

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trademark infringement claims Go Daddy receives each

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year?

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A.

I don't know a specific number, but it is

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in the thousands.

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Q.

And of those claims -- I'm sorry if you

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already told me this, but what's your estimate of how

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many of those relate to hosted accounts?

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A.

Actionable claims are in the hundreds.

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Q.

Okay.

And of the actionable claims, give

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a sense of what percentage of those actually result

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in a hosting account being cancelled or suspended?

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A.

It would be suspended and any actionable

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claim that we get a valid complete complaint for

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we're going to take action on.

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majority.

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number.

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Q.

So a majority, vast

I couldn't really give you a specific

And when you have the -- when there is a

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valid trademark claim for a hosted website, the Go

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Daddy customer has the opportunity to provide a

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counter-notification; is that correct?

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A.

Yes.

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Q.

And can you describe what a

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counter-notification is?
APP181

Page 52
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A.

Yes.

Counter-notification is actually on

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Exhibit 16.

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they have to provide 1A through 1D.

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1A through 1D, then in 10 business days if we don't

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receive anything from the complainant to prevent us

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from reinstating the site or removing the suspension,

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then the suspension is removed.

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Q.

And basically what they have to do is

Okay.

If they provide

And do you have a sense of in what

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percentage of the cases where an account is suspended

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the suspension is removed after counter-notification?

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A.

It's extremely low.

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Q.

In implementing this trademark policy for

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hosted content, does it require that Go Daddy

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actually determine whether or not a particular hosted

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website is infringing a trademark?

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A.

Can you clarify that a little?

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Q.

In other words, is what Go Daddy's doing

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under this trademark policy, is it actually looking

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at complaints and determining whether or not there

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actually is infringement or something else?

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MR. LANSKY:

Object to the form.

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THE WITNESS:

We're determining whether

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or not we've got all the elements that we need in

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order to take action.

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actually view the trademark.

We're determining that we can
We're determining that

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