Apple Inc. v. Amazon.Com, Inc.

Filing 37

Declaration of Aaron Rubenson in Support of 36 Opposition/Response to Motion for Preliminary Injunction filed byAmazon Digital Services, Inc., Amazon.Com, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Related document(s) 36 ) (Glick, Martin) (Filed on 6/1/2011)

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MARTIN R. GLICK (No. 40187)
email: [e-mail]
CLARA J. SHIN (No. 214809)
email: [e-mail]
SARAH J. GIVAN (No. 238301)
email: [e-mail]
HOWARD RICE NEMEROVSKI CANADY
FALK & RABKIN
A Professional Corporation
Three Embarcadero Center, 7th Floor
San Francisco, California 94111-4024
Telephone:
415/434-1600
Facsimile:
415/677-6262
Attorneys for Defendants and Counter-Claimants
AMAZON.COM, INC., a Delaware corporation, and
AMAZON DIGITAL SERVICES, INC., a Delaware
corporation

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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APPLE INC., a California corporation,

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Plaintiff and CounterDefendant,

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v.

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AMAZON.COM, INC., a Delaware corporation,
and AMAZON DIGITAL SERVICES, INC., a
Delaware corporation,

No. 11-CV-01327 PJH
Action Filed: March 18, 2011
DECLARATION OF AARON RUBENSON
IN SUPPORT OF OPPOSITION TO
PLAINTIFF APPLE INC.’S MOTION FOR
PRELIMINARY INJUNCTION

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Defendants and CounterClaimants.

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RUBENSON DECL. ISO OPP. TO MOT. FOR PI

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I, Aaron Rubenson, declare as follows:

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1.

I am the Category Leader for Mobile Services of Defendant Amazon.com, Inc.

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(“Amazon”), and as such am familiar with the history, business, and operations of the company,

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including the development and launch of Amazon Appstore for Android on Amazon’s website,

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www.amazon.com.

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Amazon.com, Inc. and Amazon Digital Services, Inc.’s Opposition To Plaintiff and Counter-

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Defendant Apple Inc.’s Motion For Preliminary Injunction (“Declaration”) upon personal

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knowledge except where indicated as to information and belief and, if called upon to testify, could

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and would testify competently hereto.

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2.

I make this Declaration in support of Defendants and Counter-Claimants

Amazon is a corporation organized and existing under the laws of the State of Delaware,

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with its headquarters in Seattle, Washington.

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www.amazon.com website went online in 1995. Amazon started as an online bookstore, but soon

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diversified, selling DVDs, CDs, MP3 downloads, computer software, video games, electronics,

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apparel, furniture, food, toys, and more. Amazon is one of the largest online retailers in the United

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States, with over 33,000 employees and over $34 billion in total annual gross revenue in 2010.

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3.

Jeff Bezos founded Amazon in 1994, and the

In early 2010, Amazon decided to sell apps for Android mobile devices, and began

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developing an app store through which to sell those apps—Amazon Appstore for Android. As the

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Category Leader for Mobile Services, I was one of the people primarily responsible for this effort.

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Amazon’s intention to open an app store for Android mobile devices became public in October

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2010.

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4.

On or about March 22, 2011, after many months of planning and development, Amazon

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launched Amazon Appstore for Android.

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www.amazon.com website dated March 24 and 25, 2011, reflecting the introduction and operation

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of Amazon Appstore for Android.

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5.

Attached as Exhibit 1 are printouts from the

Amazon Appstore for Android is an app store that allows a consumer to view and

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instantly download apps for their Android devices. Users may shop Amazon Appstore for Android

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either from their computers at the www.amazon.com website, or from the Amazon Appstore app on

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their Android mobile devices. Attached as Exhibit 2 are printouts from the www.amazon.com
RUBENSON DECL. ISO OPP. TO MOT. FOR PI

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website dated March 26, 2011, reflecting instructions to consumers regarding how to use Amazon

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Appstore for Android. As reflected in Exhibit 2, it is not possible for a consumer to purchase an

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app from Amazon Appstore for Android until he or she has downloaded the Amazon Appstore app

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to his or her Android mobile device.

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As reflected by its name and explained on Amazon’s website, Amazon Appstore for

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Android is only compatible with Android devices.

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does not offer apps for use with Apple mobile devices such as the iPhone, iPad, or iPod.

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Accordingly, Amazon Appstore for Android

The launch of Amazon Appstore for Android on March 22 was the result of more than a

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year of hard work and investment by Amazon. After deciding to enter the app business in early

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2010, my colleagues and I put together a team of people to work on this project, which included

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website design, technical design, developing business relationships with developers, branding,

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marketing, and customer outreach. Amazon has spent millions of dollars in connection with its

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development and launch of Amazon Appstore for Android.

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8.

Since Amazon Appstore for Android went live on March 22, many millions of apps

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have been downloaded by consumers who own Android devices. That number increases every

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minute. If this Court were to enjoin Amazon from using the term “app store,” Amazon might be

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forced to shut down Amazon Appstore for Android for a period of time while it developed a new

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designation not already in use by other competitors. Such a shutdown would result not only in lost

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app sales during shutdown, but also a general loss of confidence in Amazon by its customers. In

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addition, if the Court were to find that Apple has exclusive rights to the term “app store”, Apple

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would essentially have a monopoly of the simplest and shortest term for what Amazon Appstore for

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Android is—a store for apps.

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9.

If Amazon were required to change the name of Amazon Appstore for Android,

Amazon would have to undertake the following tasks:
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Amazon has contractual relationships with many thousands of app developers who joined

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Amazon’s app developer program and communicate with Amazon under the Amazon

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Appstore for Android name. A name change would require Amazon to create a developer

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outreach program that explains the change and the rationale behind Amazon’s new brand
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positioning. Creating this program and communicating with all of Amazon’s developers

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would require significant Amazon employee resources and would be time-consuming and

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expensive.
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Over a million Amazon customers have purchased many millions of apps through Amazon

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Appstore for Android via Amazon’s www.amazon.com website and via the Amazon

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Appstore for Android app that customers may download to their Android devices in order

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to purchase apps directly on their smartphones. A name change would require Amazon to

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educate its millions of customers regarding the name change and the reasoning behind it.

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A name change would also require a new version of the Amazon Appstore for Android

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app to be developed and installed on millions of Android smartphone user’s devices.

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Again, this would require significant Amazon employee resources.
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Amazon has engaged in a large number of interviews and communications with the press

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regarding Amazon Appstore for Android. If Amazon were required to change the name of

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Amazon Appstore for Android, Amazon would have to engage in a new public relations

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campaign to explain what changes are occurring and why.
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Hundreds of different design elements incorporating the Amazon Appstore for Android

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name currently exist across Amazon’s websites, its partners’ websites, and among

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developers. A name change would require Amazon to create all new visual assets to

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account for this change, which again would require significant employee resources.
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Amazon would be required to seek the advice of counsel in clearing a new designation for
its app store.

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10.

If Amazon were to prevail at trial, Amazon would again face the same difficulties and

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expenses identified in Paragraph 9 above in switching back to the designation Amazon Appstore for

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Android. Developers and customers would also likely become perplexed by the multiple name

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changes, which would result in a loss of confidence in Amazon. For these, Amazon would be

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unlikely to make the switch a second time even if Amazon prevails at trial.

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//

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//
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