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

Filing 243

Attachment 22
Declaration of Ajay S. Krishnan in Support of 238 MOTION for Sanctions Notice of Motion and Motion for Terminating, Evidentiary, and Monetary Sanctions Against ABWF for Spoliation of Evidence 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 (part 1)# 20 Exhibit S (part 2)# 21 Exhibit T# 22 Exhibit U# 23 Exhibit V# 24 Exhibit W# 25 Exhibit X)(Related document(s)238) (Krishnan, Ajay) (Filed on 12/26/2006)

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Google Inc. v. American Blind & Wallpaper Factory, Inc. Doc. 243 Att. 22 Case 5:03-cv-05340-JF Document 243-23 Filed 12/26/2006 Page 1 of 11 EXHIBIT U Case 5:03-cv-05340-JF Document 243-23 Filed 12/26/2006 Page 2 of 11 UNITED STATES DISTRICT COURT NORTHERN DISTRICT Of CALIfORNIA GOOGLE, INC., a Delaware corporation, vs. Plaintiff, Case No. C 03-5340-JF d/bl a decoratetoday. com, Inc., and DOES 1 - 100, inclusive, AMERICAN BLIND & WALLPAPER FACTORY, INC., a Delaware corporation CERTIFIED COpy I Defendants. AMERICAN BLIND & WALLPAPER FACTORY, INC., a Delaware corporation d/b/a decoratetoday. com, Inc., vs. GOOGLE, INC., Counter-Plainti ff, Counter- Defendant. / The video deposition of JEFFREY A. ALDERMA, taken pursuant to the Rules of the State of California, before Lana Kia Haws, CRR, CM, RPR, CSR-0995, a Notary Public in the County of Oakland, Acting in the County of Wayne, State of Michigan, at the Inn at St. John's; 44045 Five Mile Road, Plymouth, Michigan, on August 4, 2006, commencing at or about the hour of 8:00 a.m. APPEARANCES: Keker & Van Nes t, LLP BY; MR. MICHAEL H. PAGE 710 Sansome Street San Francisco, CA 94111-1704 (415) 391-5400 Appearing on behalf of the Plaintiff. Kelley Drye & Warren, LLP BY : MR. PAUL W. GARRITY 101 Park Avenue New York, New York 10178 ~212) 808-7613 Appearing on behalf of the Defendants. j; ~ 'J :1! ~ ,~ ::~ ~'l ~ ij j ~ u.s. LEGAL Certified Shorthand Reporters. Suppor ij ~ 180 Montgomery Street, Suite 218 San Francisco, CA 94104 888-575-3376. Fax 888-963-3376 i-h~~\ . , ~~',:t'" :!"lt;",,,;i ~ .;f"'.f".3; '~c1:~V,_...'.Lir.'t... .. ' __~?,,:;,;;~;;~~',-,\'v.'"r'o A'W"_~,,~.i-f,,_~,";._a.:'t~ ,~"':".-,""n'X..-h_", ,-. fi~''\'; 5'J,,__._ f",-;~,._,e.- _;",'~,~__i-i,,;;1:';!)~~~'S _g;~i; ~,, Los Angeles. Orange County. San Diego. Inland Empire. Ventiira . San Jose. San Francisco. Sacramento. . . and across the nation Case 5:03-cv-05340-JF 1 Document 243-23 Filed 12/26/2006 Page 3 of 11 A. I don't. Again, how it's printed out, I am 2 concerned wi th. 3 Q. That, I can't help with. That's how we 4 received it. 5 A. These do look in the ballpark, 54 percent of MR. PAGE: Mark as Exhibi t 19. (Mark i d for identification 6 sales coming from internet campaigns in 2006. 7 8 9 was Deposition Exhibit No. 19.) Q. 10 (BY MR. PAGE) Exhibit 19 is a two-page string 11 of e-mails, Bates number GGLE00006336 and 7, the last 12 of which in time was from Bill Smith at decoratetoday 13 to Britton Mauchline at Google and several other people 14 at American Blind and Google concerning USA Wallpaper. 15 Have you seen this document before? 16 A. No, I don't recall seeing this document. It 17 may have been in the boxes that I went through over 18 the past few days and week. 19 Q. Did American Blind, in fact, bring 20 USA Wallpaper's ad campaign to Google i s attention 21 in January of 2003? A. That looks like what is being said here in 23 the e-mail. 22 24 Q. And did Google inform American Blind that, 25 although they were matching on broad match, that one 162 u. S. Legal Support Case 5:03-cv-05340-JF Document 243-23 Filed 12/26/2006 Page 4 of 11 i solution would be to ask USA Wallpaper to put in 2 negatives on American Blind i s trademarks? 3 A. I am just reading the response here from 4 Britton. She is saying that we can request to place 5 the keyword on an exact, which would eliminate them 6 from your branded search. 7 Q. And your response to Google was that would be 8 great and how about also making our branded words 9 negati ve, correct? 10 A. I don i t think the word nega t i ve i s there. 11 12 13 MR. GARRITY: The top, the last e-mail. MR. PAGE: It says, also THE WITNESS: Oh, I see, okay. MR. GARRITY: At the top of the page. 14 15 THE WITNESS: Sorry. 16 17 MR. GARRITY: Okay. MR. PAGE: We stepped allover her on 18 that one. 19 Q. (BY MR. PAGE) So, here is my question. While you were asking Google to help you 11 20 21 in getting USA Wallpaper to establish exact matches in 22 negative keywords to protect your trademarks, why didn 't 23 you do that for theirs? 24 25 A. You know, I don i t know the answer to that. I would assume we would need to ask BillSmi th or Joe 163 -c I i I u . S. Legal Support Case 5:03-cv-05340-JF Document 243-23 Filed 12/26/2006 Page 5 of 11 1 Charno . 2 If they put us as a negative keyword, 3 then our policy today, as it states, is to, if we have 4 an agreement wi th a competitor that is brought to our 5 attention, then -- there are alot of sounds here 6 today -- if we, again, have an agreement with a 7 competi tor, that we will both put each other i s brand 8 keywords into negative campaigns on each other's 9 accounts; and that i s what we are doing today. 10 It's an open door policy. We voluntarily 11 do that to all of our competitors that we come in 12 contact wi th. 13 Q. will you put your competitor's trademarks on 14 negative lists without an agreement with them? 15 A. will we put our -- will we put --- would you 16 rephrase that, please? 17 Q. Let me rephrase it. 18 Do you feel that you have any obligation 19 to put your competi tor's trademarks on negative lists 20 in your ad campaigns, independent of having an agreement I 21 with them? 22 23 A. Again, it's our policy and it seems to work I well it's an open policy that we, as we get I 24 approached by a competitor, we will add them as negative 25 keywords to our campaigns. 164 ,'ii';,i,-;.-:,,;;,;?,,:,'-:.t-.'''_:_''- u. S. Legal Support Case 5:03-cv-05340-JF 1 Document 243-23 Filed 12/26/2006 Page 6 of 11 Q. And it's also your policy that until -- that if 2 your competitor doesn't approach you and ask, you won't, 3 right? 4 A. We don l t aggressively or knowingly bid on 5 competi tor i s keywords. We don i t buy competitor's 6 keywords and target ads on competi tor's keywords. 7 That's not where we focus our efforts. 8 Q. But you know that you will get traffic on 9 broad match as a resul t of people searching for your 10 competitor's trademarks, unless you put them in negative 11 12 13 lists, right? A. That's correct. I Q. And knowing that, you don't put them in, unless 14 your competitors demand that you do, correct? 15 A. If they bring it to our attention, then we will 16 add them as a negative keyword. Q. And if they don't bring it to your attention, 18 you won't, right? 17 19 A. Again, at this point, it's an open-door policy. I I., I 20 If they come to us, we will do the same. We don't -- we 21 don't .-22 Q: My question is, if they don't come to you, 23 will you do anything to avoid your broad matches hitting 24 searches for their trademarks? 25 A. We target our ads accordingly with our company 165 I, '. .' u. S. Legal Support Case 5:03-cv-05340-JF Document 243-23 Filed 12/26/2006 Page 7 of 11 1 name in the brand, in the ad copy. We don i t go and add 2 competitive keywords to our account. 3 Again, willingly, as it comes up, if it 4 ls brought to our attention, we will go and add a 5 negative keyword in and it works great today. 6 Q. My question is, if it is not brought to your attention by your competitors, will you add their trade , 7 8 names as negative keywords? 9 A. Again, let me teii you, the policy today and It will how it stands is it i S a volunteer policy. 11 come if they come to us or we go to them. 10 12 Q. I am gonna keep asking this question i til you 13 answer it. All right? 14 If they don't come to you and demand that 15 you put in their trademarks as negative keywords, you 16 don't do it, do you? 17 A. We don i t do that today. 18 Q. And you, nonetheless, send threatening letters 19 to people threatening to sue them when they don i t do 20 that for YOUr correct? 21 A. We will approach them with, again, Scot Storrie . 22 iS the process that we use. As we are aware of it, we 23 will send the screen shot to him; and it's brought up to ; 24 their attention that way. 25 Q. So your policy is to not proactively put in , 166: ., ',' '.0 I u. S. Legal Support Case 5:03-cv-05340-JF Document 243-23 Filed 12/26/2006 Page 8 of 11 1 your competitor's trade names as negatives; and yet you 2 threatert to sue your competitors if they have the same 3 policy, correct? 4 MR. GARRITY: Object to the form. You 5 can answer. 6 THE WITNESS: Again, today, I will tell 7 you that we focus our efforts on protecting our brands. 8 We have got a lot of equity in our brands. 9 We do not, at this point in time, today, 10 go and add lists of our competitors into our program. 11 We do not buy their keywords. I think I I 12 just answered your question. 13 Q. (BY MR. PAGE) But you threaten to sue them , 14 when they don't buy your keywords but hit them because 15 of a broad match, correct? 16 17 A. We send them a generic cease and desist letter. Q. And that cease and desist letter says, do what 18 we want or we will sue you, in effect, correct? .'. 19 MR. GARRITY: Object to the form. THE WITNESS: I can't answer that. 20 21 THE VIDEOGRAPHER: Why don i t we go off 22 the record to see what's going on. It's really 23 affecting the video and sound. 24 25 MR. PAGE: Yes. THE VIDEOGRAPHER: Thank you. Off the 167 - u. S. Legal Support Case 5:03-cv-05340-JF Document 243-23 Filed 12/26/2006 Page 9 of 11 1 record, 2:52:42 p.m. 2 (Recess taken.) 3 THE VIDEOGRAPHER: Back on the record, 4 3:02:1B p.m. 5 (Mark i d for identification 6 7 8 was Deposition Exhibit No. 20.) MR. PAGE: Mark as Exhibit 20. Q. (BY MR. PAGE) Exhibit 20 is a multi-page 9 document captioned S. E. O. Overview, Appendix, ABWF045550 10 through 558. 11 Have you seen this document before? 12 A. Yes. This looks like a document that I have 13 created. 14 15 Q. Do you know when you created this document? A. You know; I don't recall the timing. It looks 16 like it's through June 1st, 2005. 17 That's a forecast. So probably around 18 that time period ls what I would say. 19 Q. I see. So does this reflect data for American Blinds' various adwords, campaigns from the first hal f 20 21 22 23 of, you are aware of, January through at least May of 2005? A. Yes. Q. If you could turn to the page numbered 045554, 24 25 which is captioned Top Drivers/High Cost Terms, there is 168 u. S. Legal Support Case 5:03-cv-05340-JF 1 Document 243-23 Filed 12/26/2006 Page 10 of 11 2 CERTIFICATE OF NOTARY 3 5 ss. 4 STATE OF MICHIGAN 6 COUNTY OF OAKLAND 7 8 I, Lana Kia Haws, Certified 9 Shorthand Reporter and Notary Public in and for the 10 above county and state, do hereby certify that the 11 deposi tion of JEFFREY A. ALDERM was taken before me 12 at the time and place hereinbefore set forth; that 13 the witness was by me first duly sworn to testify '" 14 to the truth, the whole truth and nothing but the 15 truth; that thereupon the foregoing questions were 16 asked and foregoing answers made by the witness 17 which were duly recorded by me stenographically and 18 later reduced to computer transcription; and I certify I 19 that this is a true and correct transcript of my 20 stenographic notes so taken. 21 22 I 23 24 25 199 ::;:,-,:i: "-:,:...:-;.,:-::..,: '-."'C~'__-: ".'._:._.:',-:'-:" u. S. Legal Support Case 5:03-cv-05340-JF Document 243-23 Filed 12/26/2006 Page 11 of 11 1 2 3 4 I further certi fy that I am not Of 5 Counsel to either party nor interested in the event of 6 this cause. 7 8 9 iO Notary Public State l1 12 of Michigan County of Oakland l3 14 Acting in the County of Wayne l5 l6 l7 l8 19 20 My Commission Expires: September 29, 2011 2l 22 23 24 25 CHAPA & GIBLIN (3l3) 96l-2288 200

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