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. 3

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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 LAURIE ANDERSON

DATE:

Wednesday, October 12, 2011

TIME:

8:54 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
APP018

Page 2
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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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APP019

Page 3
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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

32

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REQUEST

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Mark the transcript as 30(b)(6)
deposition

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APP020

Page 4
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::: INDEX OF EXHIBITS :::

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NUMBER

DESCRIPTION

PAGE

3

1.

Anderson 30(b)(6) Deposition Notice

6

4

2.

Document, Bates No. GD-001494-001526

9

5

3.

Document, Bates No. GD-002446-2550

14

6

4.

Document, Bates No. GD-00560-561

28

7

5.

Document, Bates No. GD-00562-563

28

8

6.

Document, Bates No. GD-000272-392

32

9

7.

Document, Bates No. GD-000393-419

32

10

8.

Document, Bates No. GD-000614-629

48

11

9.

Document, Bates No. GD-000420-487

51

12

10.

Document, Bates No. GD-000532-559

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13

11.

Document, Bates No. GD-000500-502

61

14

12.

Document, Bates No. GD-000488-499

63

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13.

Document, Bates No. PET GD000216-272

66

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14.

ICANN/Uniform Domain Name Dispute
Resolution Policy

71

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APP021

Page 5
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LAURIE ANDERSON,

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being duly sworn by the Certified Shorthand Reporter

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to tell the truth, the whole truth, and nothing but

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the truth, testified as follows:

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EXAMINATION BY MR. CLARK
Q.

All right.

Good morning.

I'm a lawyer.

My name is

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Perry Clark.

I represent the

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plaintiff in this case, Petroliam Nasional Berhad

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also known as Petronas, and I think counsel probably

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wants to make an appearance as well.

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MR. LANSKY:

Yeah, this is David Lansky

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of Wilson Sonsini Goodrich & Rosati on behalf of the

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deponent.

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BY MR. CLARK:

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Q.

Now, do you understand that the oath you

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took today, that means that the testimony you're

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giving today is under penalty of perjury the same as

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it would be in a court of law?

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A.

Yes.

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Q.

And can I ask that if you don't

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understand any of my questions or need clarification

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of anything I'm asking, that you ask me to clarify

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the question?

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25

A.

Yes.
MR. CLARK:

Okay, great.
APP022

All right.

I'd

Page 6
1

like to have the court reporter mark as Exhibit

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number 1 the 30(b)(6) deposition notice that we

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served in this case.

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5
6

(DEPOSITION EXHIBIT 1 WAS MARKED.)
BY MR. CLARK:
Q.

So I'm handing the witness what's been

7

marked as deposition Exhibit Anderson 1, and have you

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seen this document before?

9

A.

I have.

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Q.

And so I'd like to begin by taking your

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deposition as a Rule 30(b)(6) deponent, and we'll

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have this part of the transcript marked as the

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30(b)(6) deposition.

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Now, you have been designated to testify

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on a number of topics in this notice.

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understand that?

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A.

Yes.

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Q.

Okay.

Do you

And if you could turn to page 8 of

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the deposition notice, you'll see there there's

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number 5 -- topic number 5.

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A.

Okay.

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Q.

And do you understand that you've been

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designated to testify on that topic which is the

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domain name forwarding service to which Go Daddy

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refers in paragraph 29 of its amended answer, June
APP023

Page 7
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20, 2011, including when Go Daddy began to provide

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that service to any customer?

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A.

Yes.

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Q.

Okay.

Now, when did Go Daddy first

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provide domain name forwarding services to any

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customer?

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A.

I believe it was April of 2001.

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Q.

Okay.

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And when did Go Daddy first begin

providing domain name registration for customers?

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A.

I think it was November of 2000.

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Q.

Go Daddy was able to provide domain name

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registrations without providing domain name

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forwarding services from November 2000 to April 2001?

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A.

I didn't work there at that time so I

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really can't say.

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Q.

Okay.

Can you describe -- actually,

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referring back to topic number 5, the domain name

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forwarding service to which Go Daddy refers in

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paragraph 29 of its amended answer, is that the

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domain name forwarding service it provided for the

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registrant of the domain names Petronas Tower and

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petronastowers.net?

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A.

Yes.

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Q.

Can you describe that domain name

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forwarding service for me?
APP024

Page 8
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2

A.

Domain name forwarding directs a domain

name to a specific URL.

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Q.

It's a type of routing.

Are ICANN accredited registrars required

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to provide domain name forwarding to their registrant

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customers?

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A.

I don't know.

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Q.

Are ICANN accredited registrars required

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to provide any sort of routing services to their

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registrant customers?

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A.

I don't know whether that's required or

Q.

Do you know if Go Daddy was an ICANN

not.

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accredited registrar between November 2000 and April

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2001?

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A.

I believe they became a registrar -- an

ICANN accredited registrar in November of 2000.
Q.

So ICANN stands for the Internet

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Corporation for Assigned Names and Numbers; is that

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correct?

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A.

Correct.

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Q.

Okay.

Does ICANN require accredited

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registrars like Go Daddy to provide the function of

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routing Internet traffic to websites of registrant's

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choices?

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A.

I don't know whether they require it, but
APP025

Page 15
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Q.

So these would include instructions for

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Go Daddy customers as to how to use Go Daddy's

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services?

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A.

Yes.

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Q.

Could you please turn to the page marked

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with Bates number GD-002453.

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second full paragraph on that page, please?

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9

A.

Now, could you read the

"If you registered your domain name with

another provider, you can still purchase a hosting

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account with us.

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use our CashParking or Quick Content services.

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you do any of those, you must view your nameservers

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and your account with us and then set the nameservers

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with your domain name registrar."

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Q.

These are off-site DNS services or
If

So can a customer of Go Daddy's who's

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registered their domain name with another provider

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purchase a hosting account and use Go Daddy's

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off-site DNS services?

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A.

I believe so.

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Q.

Could -- and if a customer who registered

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-- if a Go Daddy customer who registered their domain

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name with another provider and had purchased a

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hosting account with Go Daddy and used Go Daddy's

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off-site DNS services, would that customer have to

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use Go Daddy's nameservers?
APP026

Page 21
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Q.

Okay.

So as Go Daddy's designated

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representative for topic number 5 in the Rule

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30(b)(6) deposition notice which is the domain name

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forwarding service to which Go Daddy refers in

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paragraph 29 of its amended answer, you don't know if

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Go Daddy could have performed the registration and

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maintenance of the domain names petronastower.net and

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petronastowers.net without providing that domain name

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forwarding service?

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MR. LANSKY:
question.

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Object to the form of the

THE WITNESS:

Can you repeat?

BY MR. CLARK:
Q.

So you understand that you're Go Daddy's

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designated representative for topic 5 in Petronas'

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Rule 30(b)(6) deposition notice, correct?

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A.

Yes.

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Q.

And topic number 5 is the domain name

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forwarding service to which Go Daddy refers in

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paragraph 29 of its amended answer dated June 20,

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2011, correct?

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A.

Yes.

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Q.

Do you know if Go Daddy would have been

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able to perform the registration and maintenance of

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the domain names Petronas Towers -- petronastower.net
APP027

Page 22
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and petronastowers.net without providing that domain

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name forwarding service?

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MR. LANSKY:

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THE WITNESS:

Object to the form.
I believe that's -- I

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believe that they could depending on what the

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customer requires or wants to do with the domain

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name.

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BY MR. CLARK:

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Q.

So you believe that Go Daddy could have

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performed the registration and maintenance of the

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domain names Petronas Tower and petronastowers.net

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without providing its domain name forwarding service,

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correct?

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MR. LANSKY:

Object to the form.

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Misstates the entirety of her testimony and asked and

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answered.

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THE WITNESS:

If Petronas Towers domain

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names could have been pointed to another website by

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using the A record method, so I'm going to say yes.

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BY MR. CLARK:

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Q.

Okay.

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A.

In other words, the same thing could have

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been accomplished using the A record method.
Q.

Okay.

So Go Daddy did not -- well, we've

already covered that.
APP028

Page 27
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MR. LANSKY:

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THE WITNESS:

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Object to the form.
I don't know.

BY MR. CLARK:

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Q.

Do you know when Go Daddy first began

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providing domain name forwarding services for the

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domain name petronastower.net?

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A.

I don't recall.

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Q.

Do you know if Go Daddy provided domain

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name forwarding services for petronastower.net at the

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time it first became the registrar for that domain

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name?

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A.

I don't recall.

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Q.

If Go Daddy had not provided domain name

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forwarding services when it first became the

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registrar of petronastower.net, could it have

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performed the registration and maintenance of that

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domain name?

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MR. LANSKY:

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THE WITNESS:

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I believe so.

BY MR. CLARK:
Q.

Is the same true for petronastowers.net?

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MR. LANSKY:

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THE WITNESS:

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MR. CLARK:

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Object to the form.

Object to the form.
I believe so.
I'm now going to have the

court reporter mark as Anderson Exhibit 4 a document
APP029

Page 44
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Q.

And in that box there it says, "Action

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taken.

We received notification of pending court

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dispute.

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admin fee.

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complaint from complainant's representative within

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the next few days."

Lock name, set to status 10 and charged
Registrant should receive notice of the

Do you see that?

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A.

Yes.

8

Q.

Do you know if Go Daddy had any

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communication with the registrant of

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petronastower.net after it received the notification

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referred to in this document?

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A.

I don't know.

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Q.

Do you see to the left of this entry

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there's a name there.

It's Christopher Patterson?

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A.

Yes.

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Q.

Who's Christopher Patterson?

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A.

He's disputes representative.

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Q.

Was he responsible for handling the

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dispute regarding petronastower.net?
A.

He would have been the one that set it up

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when we received the claim -- or when we received the

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dispute, he would have set up the claim.

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Q.

Okay.

Now, do you know if the registrant

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of the domain name petronastower.net ever disputed

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Petronas' allegations that it was committing
APP030

Page 45
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trademark infringement?

2

A.

I don't know.

3

Q.

Okay.

Now, if you could turn to the page

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bearing Bates number GD-00298.

And a little bit

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above, halfway down the page there's another entry.

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It says, "Domain services tracking."

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towards the bottom of that entry it says, "Action

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taken.

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see that?

10

A.

Yes.

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Q.

So what does that refer to?

12

A.

If we receive a court order to implement

And sort of

Transferred domain per court order."

Do you

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a decision to or a temporary restraining order.

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Sometimes we'll be ordered to move a domain name to

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the control of the complaining party.

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Q.

Okay.

Now, it says there in the next

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row, it says, "Canceling petronastower.net order ID

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one row ID one name space forwarding resource ID."

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Do you see that?

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A.

Yes.

21

Q.

What does that refer to?

22

A.

When the domain name was moved out of the

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account, the forwarding would have been automatically

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canceled.

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Q.

Okay.

Now, after the domain name was
APP031

Page 65
1

A.

We could not have canceled the domain

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names because we are subject to the UDRP.

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would have had to have either an arbitration decision

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or a court order to transfer the domain names or

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cancel them.

6

Q.

Uh-huh.

So we

But is there anything in the

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Universal Terms of Service agreement or any other

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agreement between Go Daddy and the registrant that

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would have prevented Go Daddy from suspending those

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domain names in response to the complaints from

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Petronas?

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MR. LANSKY:

13

THE WITNESS:

14
15

Object to the form.
I don't -- I don't know.

BY MR. CLARK:
Q.

Is there anything in any of the

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agreements between Go Daddy and the registrant of the

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domain names petronastower.net and petronastowers.net

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that would have prevented it from stopping its domain

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name forwarding service for those domain names?

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MR. LANSKY:

21

THE WITNESS:

22
23

Object to the form.
I don't know.

BY MR. CLARK:
Q.

Do you know if Go Daddy ever received any

24

complaint or any communication from the registrant of

25

those domain names when Go Daddy stopped providing
APP032

Page 66
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its domain name forwarding service?

2

A.

I don't know.

3

Q.

Okay.

4
5
6

(DEPOSITION EXHIBIT 13 WAS MARKED.)
BY MR. CLARK:
Q.

I'm now handing the witness a document

7

that has been marked as Exhibit 13, and it has

8

production numbers PET GD000216 to 272.

9

tell me what Exhibit 13 is?

10
11
12
13

A.

And can you

It appears to be the May 2001 version of

the Registrar Accreditation Agreement.
Q.

And do you know if this is the Registrar

Accreditation Agreement that was in effect in 2010?

14

A.

I don't know.

15

Q.

Okay.

Now, is there anything in this

16

Registrar Accreditation Agreement that would have

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prevented Go Daddy from discontinuing its domain name

18

forwarding service for the domain names Petronas

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Tower and petronastower.net?

20

A.

I don't know.

21

Q.

Do you know why Go Daddy did not

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discontinue its domain name forwarding service for

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the domain name petronastower.net after it received

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Petronas' notification of trademark infringement

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related to that domain name?
APP033

1

CERTIFICATE

2

T,

3
4

Reporter

for

Janice

t,he State
That, the

5
6

by me; that

7

that

8

by me to

9

quest, ions

I

testif

y

before
to

10

the

11

thereaft,er

L2

transcription

13

review

l4

foregoing

15

transcript

of

all

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the

of

said

L7

skill

were

by

taken

reduced

to

under

pages are

taking

Court

deposition
adminisLer

to

was taken
an oath;

test i fying,

was duly

whol-e truth;
counseL

that

down by me in
print,

by

shorthand

that

and

the

and accurate

and testimony

deposit,ion,

all

to

had upon

Lhe best

of

I
rel-ated

20

nor

am I

to
in

FURTHERCERTIFY that

nor

employed

by any of

any way interested
DATEDthis

25th

in

day of

f
the

am 1n no way
parties

hereto

t,he outcome hereof .
October,

20LL

22

24

my

and ability.

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23

of

t,hat deposition

true,

proceedings

the

computer-aided

was requested;
a fu11,

sworn

and t,he answers

my direction;

and signature

18

2L

the

Certified

,

Arizor-La, certify:

of

foregoing

propounded

witness

Harrington

am authorized

witness ,

the

E.

'
,Jani
E. Harrington
C er t i f i e d
Court Reporter
F o r t.he Stat,e of Arizor:ra

25

APP033.1

No

50844