Google Inc. v. American Blind & Wallpaper Factory, Inc.

Filing 104

Google Inc. v. American Blind & Wallpaper Factory, Inc.

Doc. 104 Att. 1

Case 5:03-cv-05340-JF

Document 104-2

Filed 06/08/2006

Page 1 of 13

EXHIBIT A

Dockets.Justia.com

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Case 5:03-cv-05340-JF

Document 104-2

Filed 06/08/2006

Page 2 of 13

i KEKER & V AN NEST, LLP

MICHAEL H. PAGE - #154913

2 MARA. LEMLEY - #155830
RA VIN S. GREWAL - #220543
3 710 Sansome Street

San Francisco, CA 94111-1704
4 Telephone: [phone]

Facsimile: [phone]
5

Attorneys for Plaintiff and Counterdefendant

6 GOOGLE INC and Third-Party Defendants ASK JEEVES, INC. andEARTHLIN INC
7
8

9
10
11

UNTED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

12 GOOGLE INC., a Delaware corporation,

Case No. C 03-5340-JF (EAI)

i 3 Plaintiff,

14 v.
i7

i 5 AMERICAN BLIN & W ALLP APER FACTORY, INC, a Delaware corporation
16 d//a decoratetoday.com, Inc.; and DOES I100, inclusive,

GOOGLE INC.'S FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS FROM AMERICAN BLIND & WALLPAPER FACTORY, INC.

Defendant.
18

AMERICAN BLIN &.W ALLP APER 19 FACTORY, INC, a Delaware corporation
d//a decoratetoday.com, Inc.

20

Counterclaimant,
21

v.

22

GOOGLE, INC, AMERICA ONLIN, INC,
23 NETS

CAPE COMMUICATIONS
JEEVES, INC., and EARTHLIN, INC.,

CORPORA TION, COMPUSERVE 24 INTERACTIVE SERVICES, INC., ASK
25

26 27 28

Counterdefendants/ Third-Partv Defendants.

332247.01

GOOGLE INe.' S FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS FROM AMERICAN BLIN & WALLPAPER FACTORY, INe. CASE NO. C 03-5340-JF (EAI)

Case 5:03-cv-05340-JF
1 PROPOUNING

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Filed 06/08/2006

Page 3 of 13

PARTY:
PARTY: NO.:

Plaintiff GOOGLE INC.

2 RESPONDING

Defendant AMRICAN BLIN & W ALLP APER
FACTORY, INC.

3
SET

ONE

4
5 Pursuant to Federal Rule of Civil Procedure 34, Plaintiff Google Inc. ("Google") requests

6 that Defendant American Blind & Wallpaper Factory, Inc. ("American Blind") produce for
7 inspection and copying the documents and other tangible things described below. The
8 documents shall be produced for inspection and copying at the offices of

Keker & Van Nest,
other location as the

9 LLP, 710 Sansome Street, San Francisco, California 94111, or at such

10 paries may mutually agree, within thirty days of service of these requests.

11 DEFINITIONS
12
1.
14 party, and/or each of

"AMERICAN BLIND" means American Blind, its subsidiaries, divisions,

13 predecessor and successor companies, affiliates, parents, any joint venture to which it may be a
its employees, agents, officers, directors, representatives, consultants,

15 accountants and attorneys, including any person who served in any such capacity at any time.
16

2.

.'GOOGLE" means Google, its subsidiaries, divisions, predecessor and successor

17 companies, affiliates, parents, any joint venture to which it may be a party, and/or each of its

18 employees, agents, offcers, directors, representatives, consultants, accountants and attorneys,

19 including any person who served in any such capacity at any time.
20
3.

The "THIRD PARTY DEFENDANTS" include each of America Online, Inc.,

21 Netscape Communications Corporation, Compuserve Interactive Services, Inc., Ask Jeeves, Inc.,
22 and Earthlink, Inc., and each of

their subsidiaries, divisions, predecessor and successor

23 companies, affliates, parents, any joint venture to which they may be a party, and/or each of

24 their employees, agents, officers, directors, representatives, consultants, accountants and
25 attorneys, including any person who served in any suchcapacity at any time.
26

4.

The phrase "AMERICAN BLIND MARKS" means the marks AMERICAN

27 BLIND & WALLPAPER FACTORY (generally, and as further identified in U.S. Trademark
28 Reg. No.2, 022,925), AMERICAN BLIND FACTORY (generally, and as further identified in
1

GOOGLE INC. 's FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS FROM

332247.01 AMERICAN BLIND & W ALLP APER FACTORY, INe.
CASE NO. C 03-5340-JF (EAI)

"

Case 5:03-cv-05340-JF

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1 U.S. Trademark Reg. No.

1,463,548) and DECORATETODAY (generally, and as further

2 identified in U.S. Trademark Reg. No. 2,470,542).

3

5.

The phrase "AMERICAN BLIND DOMAI NAMES" means

4 www.americanblind.com, www.americanblindandwallpaper.com,
5 www.americanblindandwallpaperfactory.com, www.americanblindfactory.com,

6 w\vw.americanblinds.com, www.americanblindsandmore.com.
7 wvv"'v .ameri canblindsandwallpaper. com, www.americanblindsandwallpaperfactory.com.

8 w\\'w.americanblindswallpaperandmore.com, "vvww.americanblindwallpaper.com,

9 www.americanwallpaperandblind.com.wViiw.arericanwal1paperandblinds.com.
10 and any other Internet domain name owned by or on behalf of American Blind through which

11 customers may purchase American Blind's products or services.
12

6.

The term .'DOCUMENT(S)" is used in the broadest possible sense as interpreted
Civil Procedure and includes, without limitation, all originals and

13 under the Federal Rules of

14 copies, duplicates, drafts, and recordings of any written, printed, graphic or otherwise recorded

15. matter, however produced or reproduced, and all "wrtings" as defined in Federal Rule of

16 Evidence 1 001, including, without limitation, the following: abstracts, advertisements, agendas,

17 agreements, analyses of any kind, appointment calendars, articles, assignents, blueprints,
18 books, brochures, charts, circulars, compilations, computer programs, runs and printouts,
19 computer data fies in machine readable form, contracts, diaries, letters, em

ail, reports (including

20 reports or notes of telephone or other conversations), memoranda, brochures, books, ledgers,
21 drawings, photographs, specifications, drafts, catalogs, instrctions, invoices, bills of materials,
22 minutes, orders, publications, purchase orders, proposals, working papers, and other wrtings of

23 whatsoever nature, whether on paper, magnetic tape or other information storage means,
24 including film and computer memory devices; all drafts prepared in connection with any such
25 writings, whether used or not, regardless of

whether the document still exists, and regardless of

26 who has maintained custody of such documents; and where any such items contain any marking 27 not appearing on the original or are altered from the original, then such items shall be considered

28 to be separate original documents.
2 GOOGLE JNc. 's FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS FROM

332247.01 AMERICAN BLIN & WALLPAPER FACTORY,INe.
CASE NO. C 03-5340-JF (EAI)

,I

Case 5:03-cv-05340-JF
7.

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1

The phrase "'RELATING TO" means concernng, referring to, sumarzing,

2 reflecting, constituting, containing, embodying, pertaining to, involved with, mentioning,

3 discussing, consisting of, comprising, showing, commenting upon, evidencing, describing or

4 otherwise RELATING TO the subject matter.
5
8.

The term '"COMMUNICA TION(S)" means every manner or method of disclosure

6 or transfer or exchange of information, whether oral or by document, and whether face-to-face,

7 by telephone, mail, personal delivery or otherwise.

8

9.

The words "and" and "or" shall be construed in the conjunctive or disjunctive,

9 whichever makes the request more inclusive.
10
11

10.

"Any" shall mean one or more; "'each" shall mean '"each and every."

INSTRUCTIONS
1.

12

AMERICAN BLIN is required to produce all DOCUMENTS in the manner,
business, as required by

13 form and position in which they are kept in the ordinary course of

14 Federal Rule of

Civil Procedure Rule 34(b), inclucting, where applicable, any index tabs, file
to the location of

15 dividers, designations or information as

DOCUMENTS.

16

2.

If AMRICAN BLIN cannot respond to a document request fully, after a

17 diligent attempt to attain the requested information, AMERICAN BLIN must answer the
18 document request to the extent possible, specifY the portion of the document request

i 9 AMERICAN BLIN is ùnable to answer, and provide whatever information AMERICAN

20 BLIN has regarding the unanswered portion.
21

3.

In the event that any DOCUMENT called for by the requests has been destroyed,

22 lost, discarded or is otherwise no longer in AMERICAN BLIND's possession, custody or

23 control, AMERICAN BLIN shall identify such DOCUMENT as completely as possible, and
24 shall specify the date of disposal of the DOCUMENT, the manner of disposal, the reason for
25 disposal, the person authorizing the disposal, and the person disposing of

the DOCUMENT.

26
27 28
3
332247.01

GOOGLE INC 'SFIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS FROM AMERICAN BLIN & WALLPAPER FACTORY, rNe. CASE NO. C 03-5340-JF (EAI)

Case 5:03-cv-05340-JF
4.

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1

In the event any information is

withheld on a claim of attorney-client privilege or
privilege log which includes at least

2 work product doctrine, AMERICAN BLIN shall provide a

3 the following information: the nature of the information contained in the witheld

4 DOCUMENT, the date ofthe DOCUMENT, its source, and subject matter, and to whom that
5 information was disclosed, such as would enable the privilege claim to be adjudicated, and any

7 REQUESTS
6 authority which AMERICAN BLIN asserts supports any claim of

privilege.

8 REQUEST FOR PRODUCTION NO. i:

9 All DOCUMENTS RELATING TO AMRICAN BLIND's selection, adoption and
10 clearance of each of the AMERICAN BLIN MARS, including, but not limited to, searches,
11 investigations, reports and opinions.

12 REQUEST FOR PRODUCTION NO.2:
13 All DOCUMENTS demonstrating that AMERICAN BLIN owns the AMERICAN

14 BLIN MARS.
15 REQUEST FOR PRODUCTION NO.3:

16 All DOCUMENTS RELATING TO AMERICAN BLIND's first commercial use of each

17 of the AMERICAN BLIN MAS.
18 REQUEST FOR PRODUCTION NO.4:

19 All DOCUMENTS RELATING TO AMERICAN BLIN's first use of each of the
20 AMERICAN BLIN DOMAIN NAMES.
21 REQUEST FOR PRODUCTION NO.5:
22 Copies of all advertising and promotional materials featuring the

AMERICAN BLIN

23 MARS or AMERICAN BLIN DOMAIN NAMES.
24 REQUEST FOR PRODUCTION NO.6:

25 All DOCUMENTS RELATING TO AMERICAN BLIND's efforts to defend its
26 trademarks and domain names.

27 REQUEST FOR PRODUCTION NO; 7:
28 All business plans, reports, analyses and research RELATING TO the AMERICAN

4
GOOGLE INC.'S FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS

332247.01 AMERICAN BLIN & WALLPAPER FACTORY, INe.
CASE NO. C 03-5340-JF (EAI)

FROM

..

Case 5:03-cv-05340-JF

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1 BLIN MARS and AMERICAN BLIN DOMAIN NAMES, including, but not limited to,
2 strategic plans, forecasts, or

projections.

3 REQUEST FOR PRODUCTION NO.8:

4 All of AMERICAN BLIND's quarterly and annual audited financial statements and
5 annual reports from 1997 to the present, including all corresponding notes and schedules.

6 REQUEST FOR PRODUCTION NO.9:

7 All DOCUMENTS demonstrating AMERICAN BLIND's monthly gross revenues from
8 products and services sold under the AMERICAN BLIN MAR from the first use of

those

.9 marks to the present.
10 REQUEST FOR PRODUCTION NO.

to:

11 All DOCUMENTS demonstrating AMERICAN BLIND's monthly gross revenues from
12 products and services sold through the AMERICAN BLIN DOMAIN NAMES on a monthly

13 basis from the first use of those domain names to the present.
14 REQUEST FOR PRODUCTION NO. 11:
15 All DOCUMENTS demonstrating AMERICAN BLIND's

monthly profits and/or losses

16 for products and services sold under the AMERICAN BLIN MARS from the first use of

17 those marks to the present.
18 REQUEST FOR PRODUCTION NO. 12:

19 All DOCUMENTS demonstrating AMERICAN BLIND's monthly profits and/or losses

20 for products and services sold thröugh the AMRICAN BLIN DOMAIN NAMS on a
21 monthly

basis fromthe first use ofthose domain names to the present.

22 REQUEST FOR PRODUCTION NO. 13:

23 All DOCUMENTS demonstrating AMERICAN BLIND's monthly advertising and
24 promotional expenditures for products or services marketed under the AMERICAN BLIN

25 MARS from the first use of those marks to the present.
26 REQUEST FOR PRODUCTION NO. 14:

27 All DOCUMENTS demonstrating AMERICAN BLIND's monthly advertising and
28 promotional expenditures for products and services sold through the AMERICAN BLIND
GOOGLE INC.'S FIRST SET OF REQUESTS FOR

5 PRODUCTION OF DOCUMENTS AND THINGS FROM

332247.01 AMERICAN BLIN & W ALLPAPER FACTORY, INe.
CASE NO. C 03-5340-JF (EAI)

Case 5:03-cv-05340-JF

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Filed 06/08/2006

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DOMAI NAMES from the first use ofthose domain names to the present.
2
3

REQUEST FOR PRODUCTION NO. 15:
All DOCUMENTS identifYng the weekly number of

hits received by each ofthe

4
5

websites reachable through the AMERICAN BLIN DOMAIN NAMES from the first useof
those domain names to the present.

6 7
8

REQUEST FOR PRODUCTION NO. 16:
All DOCUMENTS identifying the weekly number of

unique users accessing the websites

reachable through

the AMERICAN BLIN DOMAI NAMES from the first use ofthose

9
10
11

domain names to the present.

12
13

BLIN and

GOOGLE.

14
15

BLIN and the THIR-PARTY DEFENDANS.
REQUEST FOR PRODUCTION NO. 19:
All DOCUMENTS RELATING TO any trademark, servicemark, trade name, Internet

16
17
18

domain name, or any other application/registration owned by or on behalf of AMERICAN

19

BLIN, through assigment or otheiwise, for any name, mark, or designation comprised of or

20
21

containing the AMERICAN BLIN MARS, or any variation thereof.

REQUEST FOR PRODUCTION NO.20:
All DOCUMENTS RELATING TO any research, reports, surveys, investigations, or

22
23

studies conducted by or on behalf of AMERICAN BLIN relating to consumer or customer
perception, understanding or recognition of any name, mark or designation comprised of or

24
25

containing the AMERICAN BLIN MARS, or any variation thereof.

26
27 28

REQUEST FOR PRODUCTION NO. 21:
All DOCUMENTS RELATING TO GOOGLE or any of

the THIR-PARTY

DEFENDANTS.
6 GOOGLE lNC. 's FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS FROM AMERICAN BLIN & WALLPAPER FACTORY, INe.

332247.01

CASE NO. C 03-5340-JF (EAI)

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1 REQUEST FOR PRODUCTION NO. 22:

2 DOCUMENTS identifying AMERICAN BLIND's corporation structure, including
3 divisions and deparments.

4 REQUEST FOR PRODUCTION NO. 23:

5 DOCUMENTS identifying AMERICAN BLIND's employees and their job descriptions.
6 REQUEST FOR PRODUCTION NO. 24:

7 All DOCUMENTS RELATING TO AMERICAN BLIND's allegation that "Defendant
8 Google actively solicits

others to purchase not only American Blind's registered and unregistered

9 trademarks, but also virtually every conceivable iteration of these marks."

10 REQUEST FOR PRODUCTION NO. 25:

11 All DOCUMENTS RELATING TO AMERICAN BLIND's allegation that "Defendants
12 have deliberately manipulated their search engine 'results' so that, when consumers use these
13 search engines to

find American Blind's products and services, the consumers are unwittingly

14 diverted to competitors' products and services."
15

REQUEST FOR PRODUCTION NO. 26:

16 All DOCUMENTS RELATING TO AMERICAN BLIND's contention that "the
17 American Blind Marks have acquired an outstanding celebrity as a source of quality home

18 decorating products and related services."
19 REQUEST FOR PRODUCTION NO. 27:

20 All DOCUMENTS RELATING TO AMERICAN BLIND's contention that "rt)he public
21 has used and now uses the American Blind Marks to identify American Blind and its home

22 decorating products and related services from the home decorating products and related servces
23 offered by othersr.)"

24 'REQUEST FOR PRODUCTION NO. 28:

25 All DOCUMENTS RELATING TO AMERICAN BLIND's allegation that "rt)he
26 designation 'Sponsored Link' is itself confusing and misleading."

27 REQUEST FOR PRODUCTION NO. 29:

28 All DOCUMENTS RELATING TO AMERICAN BLIND's allegation that uGoogle has
7 GOOGLE INC. 's FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS FROM

332247.01 AMERICAN BLIN & WALLPAPER FACfORY, INe.
CASE NO. C 03-5340-JF (EAI)

Case 5:03-cv-05340-JF

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sold many keywords comprised, in whole or in par, of the American Blind marks, to competitors
2 of American Blind."

3 REQUEST FOR PRODUCTION NO. 30:
4 All

DOCUMENTS RELATING TO AMERICAN BLIND's allegation that ""Google. . .

5 actively promotes and encourages competitors to embark on a sweeping competitive raid on the

6 American Blind Marks and virtually every conceivable, though indistinguishable, iteration of
7 those marks."

8 REQUEST FOR PRODUCTION NO. 31:

9 All DOCUMENTS RELATING TO AMERICAN BLIND's allegation that "'Google
10 intentionally has designed its financially lucrative' AdWords' program to maximize the

11 infngement and dilution of American Blind's marks."

12 REQUEST FOR PRODUCTION NO. 32:

13 All DOCUMENTS RELATING TO AMERICAN BLIND's allegation that "Google has
14 knowingly sold the American Blind Marks in commerce and included them in Google's search 15 engine for Google's own profit and to increase the competitive advantage of American Blind's

16 competitors."
17 REQUEST FOR PRODUCTION NO. 33:
18 All

DOCUMENTS RELATING TO AMERICAN BLIND's allegation that "Google

19 adopted and used this former trademark policy because it believed it would be, or could be,

20 found liable for trademark infngement or other related claims if it did not block such
21 purchases."

22 REQUEST FOR PRODUCTION NO. 34:

23 All DOCUMENTS RELATIG TO AMERICAN BLIND's allegation that '"Defendants
24 and their advertisers are wrongfully profiting off of

the goodwill and reputation oftrademark

25 owners such as American Blind."

26 REQUEST FOR PRODUCTION NO. 35:

27 All DOCUMENTS RELATING TO AMERICAN BLIND's allegation that "'Defendants'
28 search engines are deceptive and mislead consumers into believing falsely that the website links
8 GOOGLE INC'S FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS FROM

332247.01 AMERICAN BLIN & WALLPAPER FACTORY, INC.
CASE NO. C 03-5340-JF (EAI)

Case 5:03-cv-05340-JF

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1 to which they are directed via mampulated search 'results' links are sponsored or authorized by
2 and/or originat(e)from American Blind(.)"

3 REQUEST FOR PRODUCTION NO. 36:

4 All DOCUMENTS RELATING TO AMERICAN BLIND's allegation that "(t)he
5 manipulated search engine "results,' . . .

dilute the ability of the American Blind Marks to

6 identify American Blind as a source of its goods and services."
7 REQUEST FOR PRODUCTION NO. 37:

8 All DOCUMENTS RELATING TO AMERICAN BLIND's allegation that '"American
9 Blind's customers have been and will likely continue to be confused about the origin

and

10 sponsorship of the companies other than American Blind listed by the Defendants in their
11 deceptive search

engine "results.'"

12 REQUEST FOR PRODUCTION NO. 38:
13 All DOCUMENTS

RELATING TO AMERICAN BLIND's allegation that "'Defendants'

i 4 actions steal customers from American Blind's website, divert consumers to inferior products

15 and services, erode the distinctiveness of American Blind's Marks, and impair American Blind's
16 honest and good faith efforts to promote and sell its products on the Internet."

17 REQUEST FOR PRODUCTION NO. 39:

18 All DOCUMENTS RELATIG TO AMERICAN BLIND's allegation that ""Defendants'
19 actions have caused damage and

irreparable injur to American Blind."

20 REQUEST FOR PRODUCTION NO. 40:

21 All DOCUMENTS identified in, RELATING TO, or which were relied upon in
22 responding to Google's First Set of

Interrogatories to American Blind.

23 REQUEST FOR PRODUCTION NO. 41:

24 All DOCUMENTS upon which AMERICAN BLIN win rely in this lawsuit.
25

26
27

28
9
332247.01

GOOGLE INC.'S FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS FROM FACTORY, INC AMERlCAN BLIND & WALLPAPER

CASE NO. C 03-5340-JF (EAI)

,

Case 5:03-cv-05340-JF

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Dated: Maya

I,

2004

KEKER& V AN NEST, LJ

2
.:

"

By:

4
5

MIC AELH. PAGE Attorneys for Plaintiff and Counterdefendant GOOGLE INC. and Third-Part Defendants ASK JEEVES, INC. and EARTHLIN, INe.,

6 7
8

9

10
11

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13

14
15

16
17 18

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26 27 28
10 GOOGLE INC. 's FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS FROM AMERICAN BLIND & WALLPAPER FACTORY, INC. CASE NO. C 03-5340-JF (EAI)

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1

PROOF OF SERVICE

2
3

4
5

I am employed in the City and County of San Francisco, State of California in the offce of a member of the bar of this court at whose direction the following service was made. I am over the age of eighteen years and not a party to the within action. My business address is Keker & Van Nest, LLP, 710Sansome Street, San Francisco, California 94111.

On May 21,2004, I served the following document(s):

6 7

GOOGLE INC.'S FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS FROM AMERICAN BLIND & WALLPAPER FACTORY, INC.
by PDF TRASMISSION AND UNITED STATES MAIL, by transmittng via PDF on ths date. A tre
and correct copy of same was placed in a sealed envelope addressed as shown below. I am readily familiar with thè practice ofKeker & Van Nest, LLP for collection and processing of correspondence for maling. According to that practice, items are deposited with the United States Postal Service at San Francisco,
CalifoDUa on that same day with postage thereon fully prepaid. I am aware that, on motion of the par

80
9
10
11

served, service is presumed invalid if the postal cancellation date or the postage meter date is more than one day after the date of deposit for mailing stated il this affidavit.

12
13

14
15

Susan J. Greenspon David A. Rammelt Kelley Drye & Warren LLP 333 West Wacker Drive Chicago, IL 60606
Telephone: [phone] Facsimile: 312/857-7095

Robert N. Phillips Howrey Simon Arold & White, LLP 525 Market Street, Suite 3600
San Francisco,CA 94105-2708

Telephone: [phone] Facsimile: 415/848-4999

16 17 18

Stephen E. Taylor Taylor & Company Law Offices, Inc.
One

Ferr Building, Suite 355

San Francisco, CA 94111-4209
Telephone: [phone] Facsimile: 415/788-8208

19

20
21

Executed on May 21,2004, at San Francisco, California.

22
23

I declare under penalty of peijury under the laws of the State of California that the above is true and correct.

24
25 26

óLt/0-NOE E S. NICHOLS

A~,-_Vkt,/

. r, 0

27
28

332455.01

PROOF OF SERVICE CASE NO. C 03-5340-JF (EAI)