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

Filing 243

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

Doc. 243 Att. 9

Case 5:03-cv-05340-JF

Document 243-10

Filed 12/26/2006

Page 1 of 13

EXHIBIT I

Dockets.Justia.com

,"

Case 5:03-cv-05340-JF

Document 243-10

Filed 12/26/2006

Page 2 of 13

i KEKER&VANNEST,LLP
MICHAEL H. PAGE - #154913

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

San Francisco, CA 94111-1704
4 Telephone: [phone]
Facsimile: (415) 397 -7188

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,

13 Plaintiff,
14 v.
FACTORY, INC., a Delaware corporation
i 00, inclusive,

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

15 AMERICAN BLIN & WALLPAPER
16 d//a decoratetoday.com, Inc.; and DOES i-

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

17

Defendant.
18

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

20

Counterclaimant,
21

v.

22

23 NETSCAPE COMMICATIONS

GOOGLE, INC., AMERICA ONLIN, INC.,
.

CORPORATION, COMPUSERVE 24 INTERACTIVE SERVICES, INC., ASK JEEVES, INC., and EAR THLIN, INC.,
25

Counterdefendants/
26
Third-Parv Defendants.

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

332247.01

Case 5:03-cv-05340-JF
PARTY:

Document 243-10

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1 PROPOUNING

Plaintiff GOOGLE INC.

2 RESPONDING PARTY:
3

Defendant AMRICAN BLIN & W ALLP APER
FACTORY, INC.

SET NO.:
4

ONE

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,

9 LLP, 710 Sansome Street, San Francisco, California 941 n, or at such other location as the

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

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

.'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 subsidiares, 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, officers, directors, representatives, consultants, accountants and attorneys,

19 inclllding 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, afliates, parents, any joint venture to which they may be a part, and/or each of

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

26

4.

The phrase "AMERICAN BLIND MARS" means the marks AMERICAN

27 BLIN & W ALLP APER FACTORY (generally, and as furher identified in U.S. Trademark

28 Reg. No.2, 022,925), AMERICAN BLIN FACTORY (generally, and as fuher identified in
1

GOOGLE INe.'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

Document 243-10

Filed 12/26/2006

Page 4 of 13

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 www.americanblinds.com, www.americanblindsandmore.com,
7 wvv~ .americanblindsandwallpaper.com, www.amerIcanblindsandwallpaperfactorv.com.

8 www.americanblindswallpaperandinore.com, ww.americanblindwallpaper.com,
9 www.americanwallpaperandblind.com....V~.americanwallpaperandblinds.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

13 under the Federal Rules of Civil Procedure and includes, without limitation, all originals and
14 copies, duplicates, drafts, and recordings of any written, printed, graphic or otherwse 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, aricles, assignents, blueprints,
18 books, brochures, charts, circulars, compilations, computer programs, rus and printouts,
19 computer data files in machine readable form, contracts, diares, 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 stil exists, and regardless of
items contain any marking

26 who has maintained custody of such documents; and where any such

27 not appearng on the original or are altered from the original, then such items shall be considered

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

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

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

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Filed 12/26/2006

Page 5 of 13

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 otheiwise RELATING TO the subject matter.
5

8.

The term '.COMMUICA TION(S)" mean every maner or method of disclosure
information, whether oral or by document, and whether face-to-face,

6 or transfer or exchange of

7 by telephone, mail, personal delivery or otheiwise.

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.
AMERICAN BLIN is required

12

to produce all DOCUMENTS in the maimer,

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

business, asrequired by

14 Federal Rule of

Civil Procedure Rule 34(b), inclu~ing, where applicable, any index tabs, file

15 dividers, designations or information as to the location of

DOCUMENTS.

16

2.

If AMERICAN BLIN canot 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 ofthe document request

19 AMERICAN BLIN is tiable 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 AMRICAN BLIND's possession, custody or

23 control, AMRICAN BLIN shall identify such DOCUMNT as completely as possible, and
24 shall specify the date of disposal of

the DOCUMENT, the maner of disposal, the reason for

25 disposal, the person authorizing the disposal, and the person disposing ofthe DOCUMENT.
26 27

28
3
332247.01

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

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

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Filed 12/26/2006

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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 ofthe information contained in the witheld
4 DOCUMENT, the date of the 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

6 authority which AMERICAN BLIN asserts supports any claim of privilege.

7 REQUESTS
8 REQUEST FOR PRODUCTION NO. i:
11 investigations, reports and opinions.

9 All DOCUMENTS RELATING TO AMRICAN BLIND's selection, adoption and
10 clearance of each ofthe AMERICAN BLIN MARS, including, but not limited to, searches,

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 AMRICAN 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 ofthe
20 AMERICAN BLIN DOMAIN NAMES.
21 REQUEST FOR PRODUCTION NO.5:

22 Copies of all advertising and promotional materials featung the .AMERICAN BLIN

23 MAS 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
332247.01 AMRICAN BLIN &

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

Case 5:03-cv-05340-JF

Document 243-10

Filed 12/26/2006

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l. BLIN MARS and AMERICAN BLIN DOMAIN NAMS, 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 anual 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 MAS from the first use of those

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

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 ofthose domain names to the present.
FOR PRODUCTION NO.

14 REQUEST

11:

15 All DOCUMENTS demonstrating AMERICAN BLIND's

monthy 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 through the AMERICAN BLIN DOMAIN NAMS on a
21 monthly basis from the first use of those 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 MAS 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 BLIN
GOOGLE INC.'S FIRST SET OF REQUESTS

5 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

Document 243-10

Filed 12/26/2006

Page 8 of 13

DOMAI NAMES from the first use of those domain names to the present.

2 REQUEST FOR PRODUCTION NO. 15:
3 All DOCUMENTS identifyng the weekly number of hits received by each of

the

4 websites reachable though the AMERICAN BLIN DOMAIN NAMES from the first use of

5 those domain names to the present.
6 REQUEST FOR PRODUCTION NO. 16:
7 All DOCUMENTS identifyng the weekly number of

unique users accessing the websites

8 reachable through the AMERICAN BLIN DOMA NAMES from the first use ofthose
9 domain namt?s to the present.
10 REQUEST FOR PRODUCTION NO. 17:

11 All DOCUMENTS RELATING TO COMMUICATIONS between AMERICAN
12 BLIN and GOOGLE.

13 REQUEST FOR PRODUCTION NO. 18:
14 All DOCUMENTS RELATING

TO COMMCATIONS between AMERICAN

15 BLIN and the THIR-PARTY DEFENDANTS.

16 REQUEST FOR PRODUCTION NO. 19:

17 All DOCUMENTS RELATING TO any trademark, servicemark, trade name, Internet
.18 domain name, or any

other application/registration owned by or on behalf of AMERICAN

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

20 containing the AMERICAN BLIN MARS, or any varation thereof.
21 REQUEST FOR PRODUCTION NO. -20:

22 All DOCUMENTS RELATING TO any research, reports, sureys, investigations, or
23 studies conducted by or on behalf of AMERICAN BLIN relating to consumer or customer
24 perception, understanding or recognition of any name, mark or designation comprised of or
25 containing the AMERICAN BLIN

MARS, or any varation thereof.

26 REQUEST FOR PRODUCTION NO. 21:
27 All DOCUMENTS RELATING TO GOOGLE or any ofthe THIR-PARTY

28 DEFENDANTS.
6 GOOGLE INC.'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)

Case 5:03-cv-05340-JF

Document 243-10

Filed 12/26/2006

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1 REQUEST FOR PRODUCTION NO. 22:
2 DOCUMENTS identifying AMERICAN BLIND's

corporation structue, 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 manpulated 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 AMRICAN BLIN's contention that "the
17 American Blind Marks have acquired an ołtstanding 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 '"(t)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 services
23 offered by others

( .)"

24 'REQUEST FOR PRODUCTION NO. 28:
25

All DOCUMENTS RELATING TO AMERICAN BLIND's allegation that "(t)he

26

designation 'Sponsored Link' is itself confusing and misleading."

27
28

REQUEST FOR PRODUCTION NO. 29:
All DOCUMENTS RELATING TO AMERICAN BLIND's allegation that "Google has
7 GOOGLE INe.'S FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS FROM AMERICAN BLIN & WALLPAPER F AClORY, INe. CASE NO. C 03-5340-JF (EAI)

332247.01

Case 5:03-cv-05340-JF

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I 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

DOCUMNTS 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 virtally 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 "Go

ogle

1 0 intentionally has designed its financially lucrative' AdW ords' 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 Blģnd 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 RELATING TO AMERICAN BLIND's allegation that "Defendants
24 and their advertisers are wrongfully profiting off of the goodwil and reputation of trademark
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
GOOGLE INC.'S FIRST SET OF REQUESTS FOR

332247.01

AMERICAN BLIN &

8 PRODUCTION OF DOCUMENTS AND THINGS FROM FACTORY, INC. WALLPAPER CASE NO. C 03-5340-JF (EAI)

Case 5:03-cv-05340-JF

Document 243-10

Filed 12/26/2006

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1 to which they are

directed via manipulated search 'results' links are sponsored or authorized by

2 and/or originat(elfrom 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
likely continue to be confused about the origin

9 Blind's customers have been and wil

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'

14 actions steal customers from American Blind's website, divert consumers to inerior 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 RELATING 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 ofInterrogatori~s to American Blind.

23 REQUEST FOR PRODUCTION NO. 41:

24 All DOCUMENTS upon which AMERICAN BLIN wil 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 AMRICAN BLIND & WALLPAPER FACTORY, INC. . CASE NO. C 03-5340-JF (EAI)

Case 5:03-cv-05340-JF
2004

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.1 Dated: Maya

I,

KE & VAN NEST, LL0

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332247.01

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

Case 5:03-cv-05340-JF

Document 243-10

Filed 12/26/2006

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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 Californa 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, 71OSansome 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 transmitting via PDF on this date. A tre
and correct copy of same was placed in a sealed envelope addressed as shown below. I am readily familiar with the practice ofKeker & Van Nest, LLP for collection and processing of correspondence for mailing. According to that practice, items are deposited with the United States Postal Servce at San Francisco, Californa on that same day with postage thereon fully prepaid. I am aware that, On motion ofthe par 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 in ths affdavit.

80
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15 16 17 18

Susan J. Greenspon David A. Rammelt Kelley Dre & Waren 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

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 perjur under the laws of the State of California that the above is true and correct.

24
25

~

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332455.01

PROOF OF SERVICE

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