Petroliam Nasional Berhad v. GoDaddy.com, Inc.

Filing 153

DECLARATION of Perry Clark in Opposition to 152 Opposition/Response to Motion, 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 (Part 1 of 3), # 22 Exhibit 20 (Part 2 of 3), # 23 Exhibit 20 (Part 3 of 3))(Related document(s) 152 ) (Clark, Perry) (Filed on 12/9/2011)

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Ex. 15

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CLARK DECL. ISO OPP. SUMMARY JUDGMENT
Case No: 09-CV-5939 PJH

Page 1
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION

PETROLIAM NASIONAL BERHAD,

Plaintiff,
-vs-

Case No. 09-CV-5939 PJH

GODADDY.COM, INC.,
Defendants.
/
DEPOSITION OF YEOH SUAT GAIK
PAGES 1 to 142
THURSDAY, SEPTEMBER 15, 2011

Reported by:

LOUISE MARIE SOUSOURES, CSR NO. 3575
Certified LiveNote Reporter

OPPAPP003112

08:55:11

Page 2
1

A P P E A R A N C E S

2
3
4

FOR THE PLAINTIFF:

5

LAW OFFICES OF PERRY R. CLARK

6

BY: PERRY R. CLARK,

7

ATTORNEY AT LAW

8

825 SAN ANTONIO ROAD

9

PALO ALTO, CA

10

650.248.5817

11

[e-mail]

94303

12
13
14

FOR THE DEFENDANT:

15

WILSON, SONSINI, GOODRICH & ROSATI

16

BY:

17

DAVID L. LANSKY,
ATTORNEY AT LAW

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650 PAGE MILL ROAD

19

PALO ALTO, CA

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650.493.9300

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[e-mail]

94304

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23
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25

THE VIDEOGRAPHER:
GARY BREWER, CYRUS PRODUCTIONS

OPPAPP003113

Page 3
1

I N D E X

2
3

EXAMINATION BY:

4

PAGE

BY MR. LANSKY

8

5
6
7
8
9

EXHIBITS:

10

Exhibit 1

PAGE
Notice of deposition of

11

plaintiff Petroliam Nasional

12

Berhad pursuant to Federal

13

11

Rule of Civil Procedure 30(b)(6)

14

Exhibit 2

15
16

First amended complaint,

24

jury trial demanded
Exhibit 3

Document entitled "WIPO

17

Arbitration and Mediation

18

Center, administrative

19

34

panel decision," dated 3-1-01

20

Exhibit 4

Document entitled WIPO

21

Arbitration and Mediation

22

Center, administrative

23

panel decision," dated 5-16-01

24
25

OPPAPP003114

36

Page 4
1

I N D E X (CONTINUED)

2

EXHIBIT

3

Exhibit 5

PAGE
Document entitled "WIPO

4

Arbitration and Mediation

5

Center, administrative

6

37

panel decision," dated 9-18-02

7

Exhibit 6

8
9

Exhibit 7

Exhibit 8

Exhibit 9

Exhibit 10

Exhibit 11

Exhibit 12

24

58

Document production Nos.

72

Document production Nos.

72

Document production Nos.

73

PET GD 000650 to 652
Exhibit 13

22
23

Document production Nos.

PET GD 000645 to 647

20
21

46

PET GD 000640 to 642

18
19

Document production No.

PET GD 000943 to 985

16
17

45

PET GD 001878

14
15

Document production No.
PET GD 001701

12
13

44

PET GD 000162

10
11

Document production No.

Document production Nos.

73

PET GD 000621 to 622
Exhibit 14

Document production Nos.
PET GD 001945 to 2015

25

OPPAPP003115

105

Page 5
1

I N D E X (CONTINUED)

2

EXHIBIT

3

Exhibit 15

4
5

Exhibit 16

Exhibit 17

Exhibit 18

Exhibit 19

Exhibit 20

Exhibit 21

Exhibit 22

Exhibit 23

24

Document production Nos.

117

Document production Nos.

117

Document production Nos.

120

Document production No.

121

Document production No.

121

PET GD 001571
Exhibit 24

22
23

117

PET GD 001570

20
21

Document production Nos.

PET GD 001565 to 569

18
19

109

PET GD 002320 to 335

16
17

Document production Nos.

PET GD 001579 to 584

14
15

109

PET GD 001527 to 564

12
13

Document production No.

PET GD 001522 to 526

10
11

106

PET GD 002319

8
9

Document production No.
PET GD 002318

6
7

PAGE

Document production No.

121

PET GD 001572
Exhibit 25

Document production No.
PET GD 001573

25

OPPAPP003116

121

Page 6
1

I N D E X (CONTINUED)

2

EXHIBIT

3

Exhibit 26

4
5

Exhibit 27

Exhibit 28

Exhibit 29

Exhibit 30

Exhibit 31

18

125

Document production Nos.

129

Document production Nos.

133

Document production Nos.

136

PET GD 002344 to 357
Exhibit 32

16
17

Document production Nos.

PET GD 002025 to 2028

14
15

125

PET GD 002016 to 2024

12
13

Document production Nos.

PET GD 001595 to 611

10
11

121

PET GD 001585 to 594

8
9

Document production Nos.
PET GD 001574 to 578

6
7

PAGE

Document production Nos.

136

PET GD 002358 to 2463
Exhibit 33

Document production Nos.
PET GD 002464 to 465

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25

OPPAPP003117

136

Page 7
1

BE IT REMEMBERED that, pursuant to Notice

2

of Taking Deposition, commencing at the hour of 10:20

3

a.m. thereof, at 601 California Avenue, Palo Alto,

4

California, before me, LOUISE MARIE SOUSOURES, a

5

Certified Shorthand Reporter, the following

6

proceedings were had:
PROCEEDINGS

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THE VIDEOGRAPHER:

Good morning.

We are

going on the record.

10:17:59
10:20:09

Here marks the beginning of videotape number

10:20:10

11

1, volume 1 in the deposition of Yeoh Suat Gaik, in

10:20:13

12

the matter of Petronas versus GoDaddy.com in the

10:20:17

13

United States District Court, Northern District of

10:20:23

14

Oakland, case 09-CV-5939 PJH.

10:20:29

15
16
17

Today's date is September 15th, 2011 and the
time is 10:20 a.m.

10:20:32
10:20:38

My name is Gary Brewer of Cyrus Productions,

10:20:41

18

2827 55th Avenue, Oakland, California, telephone

10:20:45

19

number 510-326-9332.

10:20:51

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21
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23
24
25

The court reporter is Louise Sousoures of
Grossman & Cotter.

10:20:58

Would counsel please identify themselves and
state whom they represent.
MR. LANSKY:

10:20:55

David Lansky of Wilson Sonsini

Goodrich & Rosati on behalf of GoDaddy, the defendant

OPPAPP003118

10:20:58
10:21:02
10:21:03
10:21:08

Page 8
1

in this case.
MR. CLARK:

2
3

10:21:14
My name is Perry Clark, I

represent the plaintiff in this case, Petronas.
THE VIDEOGRAPHER:

4

If there are no

5

oath.

10:21:16
10:21:18

stipulations, the court reporter may administer the

6

10:21:14

10:21:31

7

--oOo--

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YEOH SUAT GAIK,

9

having been first duly sworn by the

10

Certified Shorthand Reporter to tell

11

the truth, the whole truth, and nothing

12

but the truth, testified as follows:
EXAMINATION BY MR. LANSKY:

13
14

Q.

Good morning.

As I just said, my name is

10:21:32

15

David Lansky and I represent defendant GoDaddy.com or

10:21:35

16

GoDaddy in this litigation.

10:21:41

I'll explain how we're going to proceed

17
18

today.

10:21:44
I'm going to ask you a number of questions

19

10:21:42

10:21:45

20

regarding the litigation between GoDaddy and

10:21:46

21

Petroliam Nasional Berhad or Petronas.

10:21:50

Is it okay if I call them Petronas for the

22
23

rest of the day?

10:21:51
10:21:54

24

A.

(Witness moves head up and down.)

10:21:55

25

Q.

Great.

10:21:56

If you don't hear or understand any

OPPAPP003119

Page 9
1

part of my questions, please just ask me to rephrase

10:22:00

2

or repeat it.

10:22:02

Do you understand?

3

10:22:03
10:22:03

4

A.

Yes.

5

Q.

Great.

And if you answer a question, I'm

10:22:04

6

going to assume that you've heard it and that you

10:22:06

7

understand it.

10:22:08

We have a court reporter taking down

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9
10

everything you say so I'm going to need audible

10:22:13

responses from you today.

10:22:15

So when you nod your head, that doesn't

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12

really pick up on the written record.
So every time I ask you, please try to

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14

10:22:09

respond audibly, okay?

15

A.

Yes.

16

Q.

Great.

10:22:16
10:22:18
10:22:20
10:22:23
10:22:24

Also, if you say uh-huh or huh-uh,

10:22:25

17

that doesn't really pick up well on the written

10:22:27

18

transcript.

10:22:31

19

appropriate.

Please try to say yes or no, whatever is

10:22:34

Also, I want to remind you you're under oath

20

10:22:34

21

today, testifying under penalty of perjury and it's

10:22:37

22

just the same as if you were sworn in in a courtroom.

10:22:41

Do you understand that?

23

10:22:45

24

A.

Yes, I understand.

10:22:45

25

Q.

From time to time, we're going to want to

10:22:46

OPPAPP003120

Page 10
1

take breaks.

10:22:49

2

If you need a break, let me know.

As long

3

as there's no question pending, we can take a break.
Also, your counsel might make objections

4
5

from time to time.

You still have to answer unless

6

he instructs you not to do that.

10:22:49
10:22:52
10:22:56
10:22:59
10:23:01

Do you understand?

7

10:23:03

8

A.

Yes, I understand.

10:23:04

9

Q.

Great.

10:23:05

10

Is there anything that would prevent

you from testifying truthfully and accurately today?

10:23:09

11

A.

There is nothing.

10:23:11

12

Q.

Great.

10:23:13

13
14

Can you state your full name and

address for the record, please?
A.

10:23:15

My name is Yeoh Suat Gaik, my address is

10:23:16

15

B2-8 Menara Mutiara Taman, TAR, T-A-R, 68000 Ampang,

10:23:22

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Selangor, S-E-L-A-N-G-O-R, Malaysia.

10:23:41

17

MR. CLARK:

Just to be clear, I do represent

10:23:47

18

both the witness and Petronas and any inquiries to

10:23:49

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the witness would go through me as her attorney.

10:23:54

20

So that's a personal address.

10:23:57

21
22
23

She also has

a corporate address.

10:24:00

So I just -- also, I would like to designate
that personal address as confidential on the record.

10:24:01
10:24:04

24

We can work out the transcript later.

10:24:08

25

MR. LANSKY:

10:24:11

No problem.

OPPAPP003121

Page 89
AFTERNOON PROCEEDINGS

1

THE VIDEOGRAPHER:

2

We are back on the

3

record, the time is 1:25 p.m.

4

13:22:36
13:22:37

BY MR. LANSKY:

5
6

Q.

Could you take a look at Exhibit 13, please,

which is the U.S. registration.

13:25:23

13:25:28
13:25:30

7

A.

Yes.

13:25:34

8

Q.

And do you see on Exhibit 13 where it says

13:25:35

9
10

for and then it says chemicals and petrochemicals and

13:25:38

there's a list of a variety of things?

13:25:42

11

A.

Yes.

13:25:45

12

Q.

So I'm going to work through the various

13:25:45

13

goods and services that are listed there and ask you

13:25:48

14

some questions about it.

So I just wanted to let you

13:25:51

15

know where I'm starting and hopefully, you can follow

13:25:55

16

along.

13:25:58

17

Do you see where it says "Chemicals and

13:25:59

18

petrochemicals for use in the manufacture of

13:26:02

19

pharmaceuticals, cosmetics, detergents, packaging,

13:26:05

20

wire and cable installation, cassette tapes, pipes,

13:26:10

21

toys, films, floorings, synthetic rubber, paints and

13:26:14

22

coatings, adhesives, fuel additives and lubricants,

13:26:20

23

textiles, agriculture, electrical and electronic

13:26:24

24

components, automotive parts, aerospace and aviation,

13:26:29

25

building and construction materials, plastics, foods

13:26:33

OPPAPP003122

Page 90
1

and diagnostic equipment."
Do you see that?

2

13:26:40
13:26:41

3

A.

Yes.

4

Q.

Okay.

5

Has Petronas ever sold that in the

United States?
MR. CLARK:

6
7

MR. LANSKY:

9

THE WITNESS:

11
12

Ever sold any products that meet

13:26:48
13:26:50

Correct.
Yes.

13:26:51
13:26:53

BY MR. LANSKY:
Q.

What types of -- can you give some examples

of those products?
MR. CLARK:

13
14

13:26:42
13:26:47

that description?

8

10

13:26:37

13:26:57
I'm sorry, object, it's vague.

You mean a description other than -MR. LANSKY:

15
16

Let's move on, that probably

sums it up.

17

13:26:55

13:27:07
13:27:09
13:27:11

BY MR. LANSKY:

18
19

Q.

13:27:14

Has Petronas sold those in the United States

within the last three years?

13:27:15
13:27:17

20

A.

Last three years, yes.

13:27:18

21

Q.

Do you know the volume or any estimates of

13:27:28

22

the volume of the products that fit that description

13:27:30

23

sold in the United States within the last three

13:27:33

24

years?

13:27:35

25

A.

I don't know the volume.

OPPAPP003123

13:27:35

Page 91
Q.

1
2

Do you know who buys those products in the

United States?
A.

3

13:27:44
13:27:47

From the documents that we sent, I believe

13:27:50

4

there's this company called Viscosity Oil that's one

13:27:53

5

and there's a couple of others I can't remember, but

13:27:58

6

there are documents.

13:28:02

Q.

7
8

How was Petronas' design mark used in

connection with those products?
A.

9

13:28:03
13:28:06

The products was sold in bulk and therefore,

13:28:08

10

the documents in the sale of the -- of the products

13:28:11

11

had the Petronas logo.

13:28:21

12

Q.

Was the logo on the packaging?

13:28:24

13

A.

I don't know.

13:28:29

14

Q.

Do you know if the logo was on the product?

13:28:30

MR. CLARK:

13:28:34

15
16

answered.

17

Objection, vague, asked and

BY MR. LANSKY:
Q.

18

13:28:39

You said it was on documents that

19

accompanied the product, correct?

20

Do you know what

type of documents?

13:28:39
13:28:42
13:28:46

21

A.

Invoices, I believe.

13:28:48

22

Q.

How about on user manuals, if there were

13:28:53

23

any?

13:28:56

24

A.

I don't know of any user manuals.

13:28:58

25

Q.

Do you know if Petronas has produced

13:29:00

OPPAPP003124

Page 92
1

documents showing the use of that design mark for

13:29:03

2

products that fit within that description?

13:29:06

3

A.

Yes.

13:29:08

4

Q.

And is the answer yes, you know, or yes,

13:29:10

5

they have?

Sorry, that wasn't a great question.

13:29:14

6

A.

Yes, they have.

13:29:17

7

Q.

Okay.

13:29:19

Let's look at the next phrase, which

8

is "chemical and petrochemical in the nature of

13:29:22

9

methanol, ethylene, methyl tertiary butyl ether or

13:29:27

10

MTBE, vinyl chloride monomer, polyvinyl chloride,

13:29:36

11

polyethylene, polypropylene, propylene, ethyl benzene

13:29:41

12

and styrene monomer all for use in industrial,

13:29:50

13

forestry, agricultural, horticultural and scientific

13:29:54

14

applications."

13:30:00

Do you know if Petronas has sold that within

15
16

the United States or in the United States?

13:30:00
13:30:04

17

A.

I don't know.

13:30:07

18

Q.

You don't know, okay.

13:30:09

Next up is "photographic chemicals,

13:30:15

19
20

artificial and synthetic resins for use in the

13:30:18

21

manufacture of fibers, polymers and coatings and

13:30:21

22

molding compounds."

13:30:26

Has Petronas sold that in the United States?

23

13:30:27

24

A.

I don't know.

13:30:30

25

Q.

Next up, "plastic molding compounds for use

13:30:33

OPPAPP003125

Page 136
1

for a second.

14:50:12

So I'm concerned you don't have a set of

2

14:50:13

3

documents that we produced and Holly has them, I

14:50:16

4

know.

14:50:23

5

MR. LANSKY:

6

MR. CLARK:

7

Additional use in the United

14:50:29
14:50:32

Why don't we go off the record to clean this
up.

14:50:33
14:50:38

THE VIDEOGRAPHER:

10
11

14:50:28

States documents.

8
9

What sort of documents?

Time to change tapes as

well.

14:50:39
14:50:41

12

Going off the record, the time is 2:50 p.m.,

14:50:41

13

here marks the end of videotape number 2, volume 1 in

14:50:45

14

the deposition of Yeoh Suat Gaik.

14:50:49

15

(Recess taken.)

14:50:53

16

(Exhibits Nos. 31 to 33 were marked.)

15:36:42

17

THE VIDEOGRAPHER:

15:36:42

Good afternoon.

We're

18

going back on the record, the time is 3:36 p.m., here

15:36:57

19

marks the beginning of videotape number 3, volume 1

15:37:02

20

in the deposition of Yeoh Suat Gaik.

15:37:05

21

BY MR. LANSKY:

22

Q.

We've handed you what is marked as

15:37:10

23

Exhibit 31, which is Bates numbered PET GD 2344

15:37:13

24

through 57.

15:37:18

25

Have you seen this type of document before?

OPPAPP003126

15:37:26

Page 137
1

A.

Yes.

15:37:28

2

Q.

What are these?

15:37:28

3

A.

These are invoices for the sale of base oil

15:37:29

4

to the United States by Petronas, subsidiary of

15:37:38

5

Petronas.

15:37:42

6
7

Q.

Were these generated by Petronas or one of

its subsidiaries?

15:37:44
15:37:48

8

A.

Yes.

15:37:49

9

Q.

Which subsidiary?

15:37:50

10

A.

Petronas Marketing Netherlands BV.

15:37:52

11

Q.

And what do these invoices reflect?

15:38:01

12

A.

The sale of base oil to a customer in United

15:38:12

13

States.

14

Q.

15

15:38:20
Was the Petronas mark used in connection

with these transactions?

15:38:20
15:38:22

16

A.

Yes.

15:38:25

17

Q.

How?

15:38:25

18

A.

It's on the top right-hand corner of the

15:38:26

19
20
21
22
23
24
25

invoices.
Q.

15:38:34
Is there any other way it was used in

connection with these transactions?
A.

The Petronas design is on the rubber stamp

on some of these invoices.
Q.

Do you know if the Petronas mark or the

Petronas and design mark was ever passed along to the

OPPAPP003127

15:38:35
15:38:37
15:38:43
15:38:48
15:38:50
15:38:53

Page 138
1

consumer of the products represented in these

15:39:00

2

invoices?

15:39:02

3

MR. CLARK:

4

Objection, vague.

THE WITNESS:

These products are sold in

15:39:03
15:39:03

5

bulk so I wouldn't know whether the end consumer

15:39:09

6

would have -- whether the end product would have a

15:39:12

7

mark and design.

15:39:17

8

BY MR. LANSKY:

9

Q.

Okay.

Let's move on to what's been marked

15:39:22

10

as Exhibit 32, which is Bates numbered PET GD 002358

15:39:24

11

through PET GD 002463.

15:39:34

After you've had a chance to take a look,

12
13
14

can you tell me what this is?
A.

These are samples of bills of lading for

15:39:44
15:39:46
15:40:04

15

shipment of various products from Petronas to a

15:40:12

16

customer in the United States.

15:40:18

17

Q.

Which customer or is it several customers?

15:40:20

18

A.

Several customers.

15:40:25

19

Q.

Is the consignee the customer?

15:40:30

20

A.

That's correct.

15:40:34

21

Q.

Was the Petronas mark used in connection

15:40:35

22

with any of these transactions?

23

MR. CLARK:

24

THE WITNESS:

25

Objection, vague.
The name of the company

appears here and there could be supporting documents

OPPAPP003128

15:40:40
15:40:44
15:40:45
15:41:04

Page 139
1

for each of this bill of lading like the ones that

15:41:09

2

were shown earlier.

15:41:14

3

BY MR. LANSKY:

4
5
6
7
8
9
10

Q.

Do you know if the Petronas design and mark

was used in connection with these transactions?
A.

In the examples given earlier, the mark was

used on the invoices.
Q.

15:41:20
15:41:22
15:41:24

With respect to these specific transactions,

do you know if the design and mark was used?
A.

15:41:18

There's one here on page 2377 as an example.

15:41:30
15:41:34
15:42:03

11

I believe there was an invoice for this transaction

15:42:08

12

where the Petronas mark is being used.

15:42:12

Who generated these bills of lading?

15:42:15

14

MR. CLARK:

15:42:22

15

THE WITNESS:

13

Q.

Objection, lack of foundation.
These documents were extracted

16

from a service that Perry found on the Internet.

17

15:42:26
15:42:29

BY MR. LANSKY:

18

Q.

What's that service called?

15:42:37

19

A.

Zepol.

15:42:39

20

Q.

Is that a service Petronas uses in

15:42:43

21

connection with the sale of goods?

22

MR. CLARK:

23

THE WITNESS:

24
25

15:42:45

Objection, vague.

15:42:52

I'm not sure.

15:42:53

BY MR. LANSKY:
Q.

What is Zepol?

OPPAPP003129

15:42:54

Page 140
1

A.

Not entirely sure myself.

15:42:56

2

Q.

Let's look at the very next Exhibit, PET GD

15:43:08

3

2464 and 2465.

15:43:17

4

Up in the upper left corner, it says Zepol.

15:43:17

5

Is that the service you just referred to?

15:43:23

6

A.

That's correct.

15:43:26

7

Q.

Have you seen this document before?

15:43:26

8

A.

Yes.

15:43:27

9

Q.

What is it?

15:43:28

10

A.

That's the glossary.

15:43:29

11

Q.

Does that relate to the terms used in the

15:43:30

12
13
14
15

bills of lading?
A.

15:43:34

That's correct.

15:43:35

MR. LANSKY:

15:43:40

questions.

I don't have any other

Thank you.

16

THE VIDEOGRAPHER:

17

MR. CLARK:

18
19
20

five minutes.

15:43:41
Is that it?

Let's just go off the record for

I think it should be it, yeah.

THE VIDEOGRAPHER:

Off the record, the time

is 3:43 p.m.
(Recess taken.)

22

THE VIDEOGRAPHER:

24
25

15:43:46
15:43:48
15:43:50
15:43:51

21

23

15:43:45

15:43:54
We are back on the

record, the time is 3:47 p.m.
This concludes the deposition of Yeoh Suat
Gaik, the number of tapes used today is three.

OPPAPP003130

15:47:07
15:47:19
15:47:22
15:47:26