Apple Inc. v. Amazon.Com, Inc.

Filing 46

Declaration of David R. Eberhart in Support of 45 Reply to Opposition/Response filed byApple Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Related document(s) 45 ) (Eberhart, David) (Filed on 6/8/2011)

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DAVID R. EBERHART (S.B. #195474)
[e-mail]
RYAN J. PADDEN (S.B. #204515)
[e-mail]
DAVID J. SEPANIK (S.B. #221527)
[e-mail]
O’MELVENY & MYERS LLP
Two Embarcadero Center, 28th Floor
San Francisco, CA 94111
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Plaintiff
APPLE INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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APPLE INC., a California corporation,

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Plaintiff,
v.
AMAZON.COM, INC., a Delaware
corporation, and AMAZON DIGITAL
SERVICES, INC., a Delaware corporation,
Defendants.

Case No. CV 11-01327 PJH
DECLARATION OF DAVID R.
EBERHART IN SUPPORT OF APPLE
INC.’S REPLY IN SUPPORT OF
MOTION FOR PRELIMINARY
INJUNCTION
Date:
Time:
Courtroom:
Judge:

June 22, 2011
9:00 A.M.
3, 3rd Floor
Hon. Phyllis J. Hamilton

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DEC. OF D. EBERHART ISO APPLE
INC.’S REPLY ISO MOT. FOR PI,
CASE NO. CV 11-01327 PJH

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I, David R. Eberhart, pursuant to 28 U.S.C. § 1746, hereby declare as follows:

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1.

I am a partner with the law firm of O’Melveny & Myers LLP, counsel of record

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for Plaintiff Apple Inc. (“Apple”). I submit this declaration in support of Apple’s reply in support

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of motion for preliminary injunction against Amazon.com, Inc. and Amazon Digital Services,

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Inc. (collectively “Amazon”).

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2.

I have reviewed certain registrations and applications made for trademarks before

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the U.S. Patent and Trademark Office. Attached hereto as Exhibit 1 is a printout from the

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Trademark Office’s website reflecting Amazon’s registration of its 1-CLICK WEBSTORE mark.

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3.

The Trademark Office has approved registrations for other marks that include the

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word “store” including:

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Trademark

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Registration
Number

THE CONTAINER STORE

1,164,143

WOOD STORE

2,339,880

AWARDSTORE

2,659,403

SWAG STORE

3,773,696

THE AUTO STORE

2,562,711
2,237,873

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THE ENGAGEMENT RING
STORE

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THE GENERATOR STORE

3,367,291

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THE PAPER STORE

Retail store services in the area of
household accessories, storage items,
storage systems, and space organizers, in
International Class 42.
Providing on-line retail services in the field
of woodworking including woodworking
tools, plans and kits, products, and related
supplies and publication subscriptions via a
global computer network, in International
Class 35.
Retail store services featuring plaques,
trophies, laser engraved acrylic and stone,
embroidery, digital screen printing, uniform
creation, personalization and corporate
identification programs and the like, in
International Class 35.
Online retail stores and retails stores
featuring a wide variety of consumer goods,
including branded and non-branded
commercial items and gift cards; Online
retail outlet featuring digital dollars, prize
money, gift certificates, and redeemable
coupons for goods and services; Online
retail outlet featuring marketing goods and
services of others, in International Class 35.
Pre-owned motor vehicle dealerships, in
International Class 35.
Retail jewelry store services, in
International Class 42.
Retail store services featuring electric
power generators for home and industrial
use, in International Class 35.
Retail store services, featuring paper and

1,212,989

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Goods/Services

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DEC. OF D. EBERHART ISO APPLE
INC.’S REPLY ISO MOT. FOR PI,
CASE NO. CV 11-01327 PJH

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plastic tableware, greeting cards and party
and gift wrapping supplies, in International
Class 42.
Retail and wholesale store services
featuring automotive and vehicular systems
and their components, in International Class
35.
On-line retail store services featuring
window blinds, curtains, decorative window
treatments and related goods, in
International Class 35.
Online retail store featuring maps, map
software, and GPS equipment, in
International Class 35.

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THE RADIATOR STORE

3,022,200

THE SHADE STORE

3,559,896

DIGITAL MAP STORE

3,080,989

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Attached as Exhibit 2 are true and correct copies of the registration certificates for the above9
listed registrations and printouts of information from the electronic database records of the United
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States Patent and Trademark Office showing the current status of each registration.
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4.

I have also reviewed the results of a search for “kindle” in active domain names on

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www.domaintools.com, the website that Amazon used to search for “appstore.” Those results
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show 6,755 active domain names with that term. Attached as Exhibit 3 is a true and correct copy
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of a printout of the first 3000 hits (the maximum the site appears to permit be accessed) resulting
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from that search.
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I declare under penalty of perjury of the laws of the United States that the foregoing is true
and correct.
Date: June 8, 2011

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/s/ David R. Eberhart
David R. Eberhart

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DEC. OF D. EBERHART ISO APPLE
INC.’S REPLY ISO MOT. FOR PI,
CASE NO. CV 11-01327 PJH