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

Filing 265

Declaration of PAUL W. GARRITY IN SUPPORT OF DEFENDANT AMERICAN BLIND AND WALLPAPER FACTORY, INC.'S 263 OPPOSITION TO GOOGLE INC.'S MOTION FOR SUMMARY JUDGMENT filed byAmerican Blind & Wallpaper Factory, Inc., American Blind & Wallpaper Factory, 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-1# 11 Exhibit J-2# 12 Exhibit J-3# 13 Exhibit K# 14 Exhibit L-1# 15 Exhibit L-2# 16 Exhibit M-1# 17 Exhibit M-2# 18 Exhibit N-1# 19 Exhibit N-2# 20 Exhibit N-3# 21 Exhibit O# 22 Exhibit P# 23 Exhibit Q-1# 24 Exhibit Q-2# 25 Exhibit R-1# 26 Exhibit R-2)(Phillips, Robert) (Filed on 1/26/2007) Modified on 1/29/2007 (gm, COURT STAFF).

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Google Inc. v. American Blind & Wallpaper Factory, Inc. Doc. 265 Case 5:03-cv-05340-JF Document 265 Filed 01/26/2007 Page 1 of 4 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 KELLEY DRYE & WARREN LLP 333 WEST WACKER DRIVE SUITE 2600 CHICAGO, IL 60606 Robert N. Phillips (SBN 120970) Ethan B. Andelman (SBN 209101) HOWREY LLP 525 Market Street, Suite 3600 San Francisco, CA 94105 Telephone: (415) 848-4900 Facsimile: (415) 848-4999 David A. Rammelt (Admitted Pro Hac Vice) Susan J. Greenspon (Admitted Pro Hac Vice) KELLEY DRYE & WARREN LLP 333 West Wacker Drive, Suite 2600 Chicago, IL 60606 Telephone: (312) 857-7070 Facsimile: (312) 857-7095 Attorneys for Defendant/Counter-Plaintiff AMERICAN BLIND AND WALLPAPER FACTORY, 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 1100, inclusive, Defendants. Case No. C 03-5340-JF (RS) DECLARATION OF PAUL W. GARRITY IN SUPPORT OF DEFENDANT AMERICAN BLIND AND WALLPAPER FACTORY, INC.'S OPPOSITION TO GOOGLE INC.'S MOTION FOR SUMMARY JUDGMENT Date: February 16, 2007 Time: 9:00 a.m. Courtroom: 3 Hon. Jeremy Fogel AMERICAN BLIND & WALLPAPER FACTORY, INC., a Delaware corporation d/b/a decoratetoday.com, Inc., Counter-Plaintiff, v. GOOGLE, INC. Counter-Defendants. Case No. C 03-5340-JF (RS) DECLARATION OF PAUL GARRITY IN SUPPORT OF OPPOSITION TO MSJ Dockets.Justia.com Case 5:03-cv-05340-JF Document 265 Filed 01/26/2007 Page 2 of 4 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 KELLEY DRYE & WARREN LLP 333 WEST WACKER DRIVE SUITE 2600 CHICAGO, IL 60606 I, Paul W. Garrity, declare as follows: 1. I am a partner at Kelley Drye & Warren LLP, counsel of record for Defendant/Counter-Plaintiff American Blind & Wallpaper Factory, Inc. ("American Blind") in the above-captioned action. I am a member in good standing of the bars of the State of New York and State of Connecticut. I have personal knowledge of the facts set forth in this declaration and, if called as a witness, could and would testify competently to such facts under oath. 2. Attached hereto as Exhibit A is a true and correct copy of the mark AMERICAN BLINDS, which is registered in the United States Patent and Trademark Office (the "USPTO") for "mail order catalog services and online ordering services featuring blinds, draperies, wall and window coverings, and home furnishings" under Registration Number 3,149,175. 3. Attached hereto as Exhibit B is a true and correct copy of the mark AMERICAN BLIND FACTORY, which is registered for "window blinds" in the USPTO under Registration Number 1,463,548. 4. Attached hereto as Exhibit C is a true and correct copy of the mark DECORATETODAY, which is registered for "retail store services and on-line retail mail order services in the field of wall and window coverings and home decorating products" in the USPTO under Registration Number 2,470,542. 5. Attached hereto as Exhibit D is a true and correct copy of American Blind's registration for the mark AMERICAN BLINDS, WALLPAPER & MORE, which is registered for "mail order catalog services and online ordering services featuring blinds, draperies, wall and window coverings, and home furnishings" in the USPTO under registration Number 2,923,867. 6. Attached hereto as Exhibit E are true and correct copies of American Blinds' two registrations for the mark AMERICAN BLIND & WALLPAPER FACTORY in the USPTO. One for the mark with a design for "retail mail order services in the field of wall and window coverings" (Registration No. 2,022,925) and the other for "mail order catalog services Case No. C 03-5340-JF (RS) -2- DECLARATION OF PAUL GARRITY IN SUPPORT OF OPPOSITION TO MSJ Case 5:03-cv-05340-JF Document 265 Filed 01/26/2007 Page 3 of 4 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 KELLEY DRYE & WARREN LLP 333 WEST WACKER DRIVE SUITE 2600 CHICAGO, IL 60606 and online ordering services featuring blinds, draperies, wall and window coverings, and home furnishings" (Registration Number 2,991,126). 7. Attached hereto as Exhibit F is a true and correct copy a June 2005 survey by Harris Interactive®, commissioned by icrossing, inc., entitled "How America Searches". 8. Attached hereto as Exhibit G is a true and correct copy of the deposition transcript of Alana Karen, taken on April 12, 2006 9. Attached hereto as Exhibit H is a true and correct copy of the deposition transcript of Rose Hagen, taken on August 10, 2006. 10. Attached hereto as Exhibit I is a true and correct copy of the deposition transcript of Larry Page, taken on January 10, 2007. 11. Attached hereto as Exhibit J is a true and correct copy of the deposition transcript of Richard Steele, III, taken on September 14, 2006. 12. Attached hereto as Exhibit K is a true and correct copy of the deposition transcript of Prashant Fuloria, taken on May 18, 2006, and August 9, 2006. 13. Attached hereto as Exhibit L is a true and correct copy of a January 23, 2005 study by Pew Internet & American Life Project, Deborah Fallows, PhD, entitled "Internet searchers are confident, satisfied and trusting ­ but they are also unaware and naïve." 14. Attached hereto as Exhibit M is a true and correct copy of a June 30, 2003 report by Consumer WebWatch, Leslie Marable, entitled "False Oracles: Consumer Reaction to Learning the Truth About How Search Engines Work Results of an Ethnographic Study". 15. Attached hereto as Exhibit N is a true and correct copy a November 8, 2004 study by Jorgen J. Wouters, Consumer Reports WebWatch, entitled "Searching For Disclosure, How Search Engines Alert Consumers to the Presence of Advertising in Search Results". 16. Attached hereto as Exhibit O is a true and correct copy of a document entitled "Request For Action By The INTA Board of Directors: Initial Interest Confusion" (Adopted September 18, 2006). Case No. C 03-5340-JF (RS) -3- DECLARATION OF PAUL GARRITY IN SUPPORT OF OPPOSITION TO MSJ Case 5:03-cv-05340-JF Document 265 Filed 01/26/2007 Page 4 of 4 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 KELLEY DRYE & WARREN LLP 333 WEST WACKER DRIVE SUITE 2600 CHICAGO, IL 60606 17. Attached hereto as Exhibit P is a true and correct copy a study by Bernard J. Jansen and Amanda Spink, School of Information Science and Technology, The Pennsylvania State University, entitled "An Analysis of Web Documents Retrieved and Viewed," presented at The 4th International Conference on Internet Computing, Las Vegas, NV, p. 65-69, June 23-26, 2003. 18. Attached hereto as Exhibit Q is a true and correct copy an April 2006 study by iProspect, entitled "iProspect Search Engine User Behavior Study". 19. Attached hereto as Exhibit R is a true and correct copy of the deposition transcript of Dr. Itamar Simonson, taken on December 15, 2006. I declare under penalty of perjury that the foregoing is true and correct. Executed this 26th day of January 2007, in New York, New York. __/s/ Paul W. Garrity___________ PAUL W. GARRITY Case No. C 03-5340-JF (RS) -4- DECLARATION OF PAUL GARRITY IN SUPPORT OF OPPOSITION TO MSJ

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