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

Filing 243

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

Dockets.Justia.com

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
[phone] 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.

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u.s. LEGAL
Certified Shorthand Reporters.

Suppor ij

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180 Montgomery Street, Suite 218 San Francisco, CA 94104
888-575-3376. Fax [phone]

www.uslegalsupport.com
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Los Angeles. Orange County. San Diego. Inland Empire. Ventiira . San Jose. San Francisco. Sacramento. . . and across the nation

Case 5:03-cv-05340-JF
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Document 243-23

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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
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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
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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.
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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
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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
,

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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
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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
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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

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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