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

Filing 266

Declaration of JEFFREY ALDERMAN IN SUPPORT OF 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)(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. 266 Case 5:03-cv-05340-JF Document 266 Filed 01/26/2007 Page 1 of 9 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 SIMON ARNOLD & WHITE, 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. AMERICAN BLIND & WALLPAPER FACTORY, INC., a Delaware corporation d/b/a decoratetoday.com, Inc., Counter-Plaintiff, v. GOOGLE, INC.,. Counter-Defendants/ Date: February 16, 2007 Time: 9:00 a.m. Courtroom: 3 Hon. Jeremy Fogel Case No. C 03-5340-JF (EAI) DECLARATION OF JEFFREY ALDERMAN IN SUPPORT OF AMERICAN BLIND & WALLPAPER FACTORY INC.'S OPPOSITION TO GOOGLE INC.'S MOTION FOR SUMMARY JUDGMENT Case No. C 03-5340-JF (RS) Dec of Jeffrey Alderman ISO ABWFI's Opposition to Google Inc.'s MSJ Dockets.Justia.com Case 5:03-cv-05340-JF Document 266 Filed 01/26/2007 Page 2 of 9 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, JEFFREY ALDERMAN, declare as follows: 1. I am the Director of Business Development and E-Commerce for American Blind and Wallpaper Factory, Inc. ("American Blind"). I am fully familiar with the facts set forth herein, and, if called to testify, could do so competently. 2. Summary Judgment. 3. American Blind is one of the largest direct-to-consumer retailers of custom This Declaration is submitted in opposition to Google, Inc.'s Motion for order window treatments and wall coverings in the United States. 4. American Blind, in conjunction with its predecessor companies, has been in the home decorating business for over a half century. 5. American Blind promotes, offers for sale and sells its home decorating products and related services across the United States through its website, a network of thousands of on-line marketing affiliates, product catalogues, a shop at home service, a showroom in Michigan, and toll-free telephone numbers. 6. Over the history of the American Blind's business, over eight million customers and potential customers have shopped for home decorating products such as draperies, window blinds and wallpaper with American Blind. 7. American Blind's net sales of its products and services over the past five years well exceeds five hundred million dollars. 8. American Blind long ago adopted and used, and has continued to use, the names and marks AMERICAN BLINDS (and/or AMERICAN BLIND, identified herein as "AMERICAN BLINDS"), AMERICAN BLIND FACTORY, DECORATETODAY, AMERICAN BLIND AND WALLPAPER, and AMERICAN BLIND & WALLPAPER FACTORY (hereinafter collectively identified as the "American Blind Marks") in connection with home decorating products and related services. 9. American Blind has long featured the term "AMERICAN" within the American Blind Marks. Case No. C 03-5340-JF (RS) -2- Dec of Jeffrey Alderman ISO ABWFI's Opposition to Google Inc.'s MSJ Case 5:03-cv-05340-JF Document 266 Filed 01/26/2007 Page 3 of 9 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 10. On sales and advertising materials, letterhead, and the American Blind Website, the term "AMERICAN" appears in a font size at least four times larger than the remaining text in any given mark, and is positioned on a separate line from the remaining terms, such that it appears as follows: American Blinds, Wallpaper & More Examples of such use are attached as Exhibit A hereto. 11. Our company has long been known to customers and prospective customers as, simply, "AMERICAN" or "American Blinds." 12. With the exception of a brief period in 1999-2000, the corporate and/or trade names used by American Blind for over twenty years ("American Blind Factory, Inc.", "American Blind, Wallpaper and Carpet Factory, Inc.", "American Blind and Wallpaper Factory, Inc.", and "American Blinds, Wallpaper & More") have featured the name "American Blind(s)." 13. American Blind for many years advertised and promoted its private label products under the designation "AMERICAN," the "AMERICAN Brand" or, simply, "American Blinds." Examples of such advertising is attached as Exhibit B hereto. As a result of this advertising, together with the manner in which American Blind's private label blinds have long been offered for sale and sold, American Blind's products and services are commonly known to customers and potential customers as "American Blinds." 14. American Blind identifies itself, together with the products and services which it offers, using the mark AMERICAN BLINDS in multiple different advertising medium, including television and radio commercials, yellow pages listings, magazine advertisements and postcards mailed to customers and prospective customers. 15. American Blind's sales catalogues prominently feature the AMERICAN BLINDS mark (as the display URL for American Blind's website [the "American Blind's Website"]) on the cover, and the AMERICAN BLINDS mark is used throughout the pages of each catalogue, appearing on at least every other page. A representative example of such a Case No. C 03-5340-JF (RS) -3- Dec of Jeffrey Alderman ISO ABWFI's Opposition to Google Inc.'s MSJ Case 5:03-cv-05340-JF Document 266 Filed 01/26/2007 Page 4 of 9 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 catalogue is attached as Exhibit C hereto. American Blind's sales catalogue identifies American Blind's products only by product type, color number, color name and size. 16. American Blind's sales agents use sales scripts when answering calls from customers using these catalogues. These sales scripts repeatedly identify American Blind and the products and services offered in the catalogues using the AMERICAN BLINDS mark. A sales script used for responding to telephone calls is attached as Exhibit D hereto. 17. The AMERICAN BLINDS mark is the display URL for the American Blind's Website. The mark appears prominently on each of the "blinds" category pages of the American Blind's Website. 18. American Blind owns dozens of domain name registrations incorporating the AMERICAN BLINDS mark, all of which drive traffic to the American Blind Website. 19. American Blind uses the AMERICAN BLINDS mark in e-mail campaigns and in keyword advertising. 20. American Blind's on-line sales affiliates actively use the name and mark AMERICAN BLINDS on and in connection with websites advertising and promoting American Blind's products and services and to drive traffic to the American Blind's Website. 21. The private label blinds sold by American Blind, together with product samples of such blinds sent to prospective customers, identify and mark American Blind's products with the designation American Blinds, Wallpaper & More together with the AMERICAN BLINDS mark (as the display URL for the American Blind's Website). Examples of product samples and the labels affixed to the bottom of the private label blinds are attached as Exhibit E hereto. 22. No other name or designation appears anywhere on or in connection with the products or the packaging for the products. The sales and shipping invoices accompanying American Blind's product samples and American Blind's private label products identify Case No. C 03-5340-JF (RS) -4- Dec of Jeffrey Alderman ISO ABWFI's Opposition to Google Inc.'s MSJ Case 5:03-cv-05340-JF Document 266 Filed 01/26/2007 Page 5 of 9 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 American Blind's products only by product type, color number, color name and size. Examples of shipping invoices for American Blind's private label blinds are attached as Exhibit F hereto. 23. The AMERICAN BLIND FACTORY mark has been used on and in connection with window blinds and advertising and promotion for American Blind's products and services. American Blind owns dozens of domain name registrations incorporating the AMERICAN BLIND FACTORY mark, iterations of the AMERICAN BLIND FACTORY mark, or which use the AMERICAN BLIND FACTORY mark as a formative, all of which drive traffic to the American Blind Website. 24. American Blind uses the AMERICAN BLIND FACTORY mark in keyword advertising. American Blind's on-line sales affiliates actively use the name and mark AMERICAN BLIND FACTORY on and in connection with websites (including metadata and keyword advertising) to advertise and promote American Blind's products and services and to drive traffic to the American Blind's Website. 25. American Blind used the DECORATETODAY mark as the destination URL for American Blind Website (www.decoratetoday.com) and the mark is used on American Blind's website ("American Blinds Wallpaper and More brings you decoratetoday.com"). 26. American Blind uses the DECORATETODAY mark in e-mail campaigns and in keyword advertising, and the DECORATETODAY mark is used by American Blind's affiliates advertising and promoting American Blind's products and services. 27. American Blind uses the AMERICAN BLINDS, WALLPAPER & MORE mark on American Blind's sales catalogues, the American Blind's Website, and is the only mark, in addition to AMERICAN BLINDS, appearing on American Blind's products. 28. The AMERICAN BLIND & WALLPAPER mark has been in use since 1986. The AMERICAN BLIND & WALLPAPER mark is used on order forms for use in purchasing American Blind's products and services. 29. American Blind owns dozens of domain name registrations incorporating the AMERICAN BLIND [AND/&] WALLPAPER mark, all of which drive traffic to the American Blind Website. American Blind uses the AMERICAN BLIND [AND/&] Case No. C 03-5340-JF (RS) -5- Dec of Jeffrey Alderman ISO ABWFI's Opposition to Google Inc.'s MSJ Case 5:03-cv-05340-JF Document 266 Filed 01/26/2007 Page 6 of 9 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 WALLPAPER mark in keyword advertising. The AMERICAN BLIND [AND/&] WALLPAPER mark is one of the best performing keywords used by American Blind in its Internet advertising. 30. American Blind's on-line sales affiliates actively use the name and mark AMERICAN BLIND & WALLPAPER on and in connection with websites (including metadata and keyword advertising) to advertise and promote American Blind's products and services and to drive traffic to the American Blind Website. 31. American Blind makes widespread use of the AMERICAN BLIND & WALLPAPER FACTORY mark. The mark is used in multiple different advertising medium, including yellow pages listings, magazine advertisements, catalogue display cases, and postcards mailed to customers and prospective customers. The AMERICAN BLIND & WALLPAPER FACTORY mark appears on company letterhead, order forms, business cards, and apparel. American Blind's showroom is identified on both exterior and interior signage under the AMERICAN BLIND & WALLPAPER FACTORY mark. Examples of such use are attached as Exhibit G hereto. 32. American Blind's catalogues have used the AMERICAN BLIND & WALLPAPER FACTORY mark. 33. The AMERICAN BLIND & WALLPAPER FACTORY mark is used throughout the American Blind's Website. American Blind owns dozens of domain name registrations incorporating the AMERICAN BLIND & WALLPAPER FACTORY mark, all of which drive traffic to the American Blind Website. American Blind uses the AMERICAN BLIND & WALLPAPER FACTORY in keyword advertising and long used the AMERICAN BLIND & WALLPAPER FACTORY mark in e-mail campaigns. 34. American Blind's on-line sales affiliates actively use the name and mark AMERICAN BLIND & WALLPAPER FACTORY on and in connection with websites (including metadata and keyword advertising) to advertise and promote American Blind's products and services and to drive traffic to the American Blind's Website. Case No. C 03-5340-JF (RS) -6- Dec of Jeffrey Alderman ISO ABWFI's Opposition to Google Inc.'s MSJ Case 5:03-cv-05340-JF Document 266 Filed 01/26/2007 Page 7 of 9 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 35. American Blind has distributed between ten and twelve million mailings (in the form of catalogues and postcards) nationwide in each of the past ten years bearing the American Blind Marks. 36. American Blind maintains a database of over five million e-mail addresses, which it uses for extensive e-mail campaigns run multiple times throughout each month. 37. Since 2001, American Blind has spent in excess of fifty million dollars ($50,000,000) advertising, marketing and promoting its goods and services under the American Blind Marks in medium other than the Internet ("Off-Line Marketing"). 38. This amount is in addition to the tens of millions of dollars invested by American Blind in such marketing of the American Blind Marks in the fifteen years the marks were in use before 2001. 39. American Blind's Off-Line Marketing efforts using the American Blind Marks include television and radio commercials, direct mail pieces (including catalogues and postcards), newspaper and magazine advertising, Yellow Pages advertising, trade shows, third party package insert programs, third party catalogue "blow-in" programs, cooperative advertising mailings, and magazine advertising. 40. American Blind also promotes the American Blind Marks through its third party partner programs. Under such programs, American Blind advertises its products and services bearing the American Blind Marks in print programs through partners such as the U.S. Postal Service, G.M.A.C. Real Estate, and American Express. 41. As part of the relationship with Linens N' Things, American Blind has kiosk displays in over five hundred (500) Linens N' Things retail stores located throughout the country. The American Blind Marks are used in Linens N' Things package insert programs, and co-branded catalogues incorporating American Blind's products and services sold under the American Blind Marks have been distributed multiple times each year to the over twenty million Linens N' Things customers on Linens N' Things mailing list. A copy of the agreement with Linens N' Things is attached as Exhibit H hereto. Case No. C 03-5340-JF (RS) -7- Dec of Jeffrey Alderman ISO ABWFI's Opposition to Google Inc.'s MSJ Case 5:03-cv-05340-JF Document 266 Filed 01/26/2007 Page 8 of 9 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 42. Over fifty percent of American Blind's sales transactions are consummated through the American Blind Website. The American Blind Website receives over thirty thousand visits each day by customers or potential customers. American Blind makes over four hundred thousand sales transactions over the American Blind Website each year. 43. American Blind has spent over ten million dollars ($10,000,000) developing its website, and spends in excess of an additional one million dollars ($1,000,000) each year in maintaining, enhancing and updating its website. 44. American Blind since 2001 has spent over fifteen million dollars ($15,000,000) advertising, marketing and promoting its goods and services under the American Blind Marks exclusively in Internet marketing programs ("Internet Marketing"). 45. American Blind's Internet Marketing programs include email marketing, affiliate campaigns, participating in on-line shopping networks and catalogue aggregation programs, data feed programs, and paid search programs, namely, keyword advertising. 46. American Blind has to date paid Google over five million dollars ($5,000,000) to advertise products and services under the American Blind Marks. 47. Internet Marketing of the American Blind Marks also includes programs with credit card companies such as Visa, MasterCard, and Discover Card which have featured links to the American Blind Website. American Blind has a strategic alliance with Meredith Corporation the result of which is a link to the American Blind Website appearing on the Better Homes and Gardens website. 48. Target promotes American Blind as a "Featured Partner" on its website. Target's on-line customers are directed to a co-branded website created by American Blind on which products and services are advertised and offered for sale under the American Blind Marks. Target has also sold American Blind products directly through Target's own website. Customers searching the Target website using the American Blind Marks, such as AMERICAN BLINDS, would receive search results identifying various styles and colors of American Blind's private label products and purchase the same. A copy of the agreement with Target is attached as Exhibit I hereto. Case No. C 03-5340-JF (RS) -8- Dec of Jeffrey Alderman ISO ABWFI's Opposition to Google Inc.'s MSJ Case 5:03-cv-05340-JF Document 266 Filed 01/26/2007 Page 9 of 9 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 declare under penalty of perjury that the foregoing is true and correct. Executed this 26th day of January 2007, in Plymouth, Michigan. __/s/ Jeffrey Alderman______ JEFFREY ALDERMAN ATTESTATION AS TO CONCURRENCE I, Ethan B. Andelman, under penalty of perjury of the laws of the United States of America, attest that concurrence in the filing of this document has been obtained from the signatory to this document. ____ _ __/s/ Robert_N. Phillips Robert N. Phillips Case No. C 03-5340-JF (RS) -9- Dec of Jeffrey Alderman ISO ABWFI's Opposition to Google Inc.'s MSJ

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