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

Filing 237

Declaration of Klaus H. Hamm in Support of 230 MOTION for Summary Judgment filed byGoogle Inc., Google Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L# 13 Exhibit M# 14 Exhibit N# 15 Exhibit O# 16 Exhibit P# 17 Exhibit Q# 18 Exhibit R# 19 Exhibit S# 20 Exhibit T# 21 Exhibit U# 22 Exhibit V# 23 Exhibit W# 24 Exhibit X)(Related document(s)230) (Krishnan, Ajay) (Filed on 12/26/2006)

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Google Inc. v. American Blind & Wallpaper Factory, Inc. Doc. 237 Case 5:03-cv-05340-JF Document 237 Filed 12/26/2006 Page 1 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KEKER & VAN NEST, LLP MICHAEL H. PAGE - #154913 MARK A. LEMLEY - #155830 KLAUS H. HAMM - #224905 AJAY S. KRISHNAN - #222476 710 Sansome Street San Francisco, CA 94111-1704 Telephone: (415) 391-5400 Facsimile: (415) 397-7188 Attorneys for Plaintiff and Counter Defendant GOOGLE INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA GOOGLE INC., a Delaware corporation, Plaintiff, v. AMERICAN BLIND & WALLPAPER FACTORY, INC., a Delaware corporation d/b/a decoratetoday.com, Inc., and DOES 1-100, inclusive, Defendants. AMERICAN BLIND & WALLPAPER FACTORY, INC., a Delaware corporation d/b/a decoratetoday.com, Inc., Counter Plaintiff, v. GOOGLE INC., Counter Defendant. Case No. C 03-5340-JF (RS) DECLARATION OF KLAUS H. HAMM IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT Date: January 30, 2007 Time: 9:00 a.m. Courtroom: 3, 5th Floor Judge: Hon. Jeremy Fogel PUBLICLY FILED VERSION 1 386716.01 DECLARATION OF KLAUS HAMM IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT CASE NO. C 03-5340-JF (RS) Dockets.Justia.com Case 5:03-cv-05340-JF Document 237 Filed 12/26/2006 Page 2 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I, Klaus H. Hamm, declare as follows: 1. I am an attorney at the firm of Keker & Van Nest LLP, counsel for Plaintiff and Counter-Defendant Google Inc., and am admitted to practice before this Court. I make this declaration in support of Google's Motion for Summary Judgment. Unless otherwise stated, I know the facts stated herein of my personal knowledge and if called as a witness, I would testify competently thereto. 2. Attached hereto as Exhibit A is a true and correct copy of a screenshot of a search results page for a Google search engine search for "american blinds and wallpaper factory." ABWF's ads appear as the first and second advertisements in the Sponsored Links section above the natural search results, displaying the URLs www.AmericanBlinds.com and AmericanWallpaper.com/Blinds. 3. Attached hereto as Exhibit B is a true and correct copy of pages printed from the Google AdWords Help Center and Bates labeled GGL005738 GGL005739. 4. Attached hereto as Exhibit C is a true and correct copy of a page printed from the Google AdWords Help Center and Bates labeled GGL005754. 5. Attached hereto as Exhibit D is a true and correct copy of an email from Bill Smith to Britton Mauchline, dated January 6, 2003, and Bates labeled GGLE00006336 GGLE00006337. Google has under separate cover requested that this document be filed under seal. 6. Attached hereto as Exhibit E is a true and correct copy of Google's AdWords Trademark Complaint Procedure, Bates labeled GGLE00018825 GGLE00018829. 7. Attached hereto as Exhibit F is a true and correct copy of excerpts from the deposition transcript of Alana Karen, taken on April 12, 2006. Google has under separate cover requested that this document be filed under seal. 8. Attached hereto as Exhibit G is a true and correct copy of excerpts from the deposition transcript of Alvin Ossip, taken on November 21, 2006. 9. Attached hereto as Exhibit H is a true and correct copy of American Blind & Wallpaper Factory, Inc.'s Amended Answer to Google Inc.'s Second Set of Interrogatories, 2 386716.01 DECLARATION OF KLAUS HAMM IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT CASE NO. C 03-5340-JF (RS) Case 5:03-cv-05340-JF Document 237 Filed 12/26/2006 Page 3 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 dated October 9, 2006. 10. Attached hereto as Exhibit I is a true and correct copy of a letter and attachments from Stephanie Carter to the Assistant Commissioner for Trademarks, dated April 9, 2004, and Bates labeled ABWF008773 ABWF008778. 11. Attached hereto as Exhibit J is a true and correct copy of ABWF's submission to the Patent and Trademark Office as proof of its actual use of the purported mark "American Blinds." The exhibit appears to be a screenshot from decoratetoday.com, dated May 9, 2006. 12. Attached hereto as Exhibit K is a true and correct copy of 1215.02 of the Trademark Manual of Examination Procedures, obtained from the website of the Patent and Trademark Office. 13. Attached hereto as Exhibit L is a true and correct copy of excerpts from the deposition transcript of Jeffrey Alderman, taken on August 4, 2006. Google has under separate cover requested that this document be filed under seal. 14. Attached hereto as Exhibit M is a true and correct copy of a document titled "Ad Text Report," and Bates labeled ABWF 046258 ABWF 046259. Google has under separate cover requested that this document be filed under seal. 15. Attached hereto as Exhibit N is a true and correct copy of a screenshot displaying the American Blind logo, and is Bates labeled ABWF003814. 16. Attached hereto as Exhibit O is a true and correct copy of a document titled "A Study to Determine Whether Google's Sale of Key Word Advertising in the Form of Sponsored Links, For the Entry `American Blinds' Misleads Consumers Seeking to Order Products On-Line from American Blinds," prepared by Alvin Ossip, ABWF's expert witness, and dated October, 2006. 17. Attached hereto as Exhibit P is a true and correct copy of the "stimulus" Dr. Ossip presented to participants in his study. This document, created by Dr. Ossip, was apparently intended to resemble a screenshot of an actual search-results page from a Google search. The document was produced by ABWF in the course of expert discovery. 3 386716.01 DECLARATION OF KLAUS HAMM IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT CASE NO. C 03-5340-JF (RS) Case 5:03-cv-05340-JF Document 237 Filed 12/26/2006 Page 4 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18. Attached hereto as Exhibit Q is a true and correct copy of the Expert Report of Dr. Itamar Simonson, Google's expert witness, dated December 5, 2006. 19. Attached hereto as Exhibit R is a true and correct copy of a screenshot of a Google web page search for "american blinds." ABWF's ads appear as (1) the advertisement in the Sponsored Links section above the natural search results, displaying the URL www.AmericanBlinds.com and (2) the second advertisement on the right-hand column of the Sponsored Links, displaying the URL AmericanWallpaper.com/Blinds. 20. Attached hereto as Exhibit S is a true and correct copy of a study prepared by the Kaden Company and dated March 2003. It is Bates labeled ABWF002966 ABWF002994. Google has under separate cover requested that this document be filed under seal. 21. Attached hereto as Exhibit T is a true and correct copy of a study prepared by the Kaden Company and dated September 2002. It is Bates labeled ABWF002950 ABWF002965. Google has under separate cover requested that this document be filed under seal. 22. Attached hereto as Exhibit U is a true and correct copy of an email from Scot Storrie to Steve Katzman, dated May 1, 2006 and Bates labeled ABWF 047697, and an email from Jim Jenkins to adwords-support@google.com, dated April 29, 2006 and Bates labeled ABWF 047698. Also attached hereto is a true and correct copy of a letter from Scot Storrie to James Jenkins, dated February 20, 2006, and Bates labeled ABWF 047708 ABWF 047712. Google has under separate cover requested that these documents be filed under seal. 23. Attached hereto as Exhibit V are true and correct copies of email correspondence between Scot Storrie and Barry Balbes, Bates labeled ABWF 047843 ABWF 047864, and a letter from Scot Storrie to Barry Balbes, dated May 10, 2006 and Bates labeled ABWF 047828 ABWF047834. Google has under separate cover requested that these documents be filed under seal. 24. Attached hereto as Exhibit W is a true and correct copy of a screenshot of a Google web page search for "usawallpaper.com." ABWF's ad appears as the first advertisement in the right hand column of the Sponsored Links, displaying the URL www.AmericanWallpaper.com. 4 386716.01 DECLARATION OF KLAUS HAMM IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT CASE NO. C 03-5340-JF (RS) Case 5:03-cv-05340-JF Document 237 Filed 12/26/2006 Page 5 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25. Attached hereto as Exhibit X is a true and correct copy of a screenshot of a Google web page search for "internet wallpaper store." ABWF's ad appears as the second advertisement in the right hand column of the Sponsored Links, displaying the URL, www.AmericanWallpaper.com. I state under penalty of perjury of the laws of the United States of American that the foregoing statements are true and correct. Executed December 26, 2006, at San Francisco, California. /s/ Klaus H. Hamm KLAUS H. HAMM 5 386716.01 DECLARATION OF KLAUS HAMM IN SUPPORT OF GOOGLE'S MOTION FOR SUMMARY JUDGMENT CASE NO. C 03-5340-JF (RS)

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