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

Filing 291

RESPONSE in Support AMERICAN BLIND & WALLPAPER FACTORY INC.'S RESPONSE TO GOOGLE'S 276 OBJECTIONS TO EVIDENCE SUBMITTED BY ABWF IN OPPOSITION TO GOOGLE'S MOTION FOR SUMMARY JUDGMENT filed byAmerican Blind & Wallpaper Factory, Inc., American Blind & Wallpaper Factory, Inc.. (Phillips, Robert) (Filed on 2/13/2007) Modified on 2/14/2007 (gm, COURT STAFF).

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Google Inc. v. American Blind & Wallpaper Factory, Inc. Doc. 291 Case 5:03-cv-05340-JF Document 291 Filed 02/13/2007 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 ROBERT N. PHILLIPS (SBN 120970) ETHAN B. ANDELMAN (SBN 209101) HOWREY LLP 525 Market Street, Suite 3600 San Francisco, CA 94105 T: (415) 848-4900 F: (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 T: (312) 857-7070 F: (312) 857-7095 Counsel 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 1-100, INCLUSIVE, Defendant. CASE NO. C 03-5340 AMERICAN BLIND & WALLPAPER FACTORY INC.'S RESPONSE TO GOOGLE'S OBJECTIONS TO EVIDENCE SUBMITTED BY ABWF IN OPPOSITION TO GOOGLE'S MOTION FOR SUMMARY JUDGMENT Date: February 16, 2007 Courtroom: 3, 5th Floor Time: 9:00 a.m. Judge: Hon. Jeremy Fogel AMERICAN BLIND & WALLPAPER FACTORY, INC., a Delaware corporation d/b/a decoratetoday.com, Inc., Counter-Plaintiff, v. GOOGLE, INC., Counter-Defendant. Case No. C 03-5340 JF (RS) Response to Google's Obj's to Evid Submitted by ABWF in Opp. To Google's MSJ Dockets.Justia.com Case 5:03-cv-05340-JF Document 291 Filed 02/13/2007 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 Defendant and Counter-Plaintiff American Blind & Wallpaper Factory Inc. ("American Blind") hereby responds to Google's objections to evidence submitted by American Blind in opposition to Google's Motion for Summary Judgment. Google has moved to strike in part the Declaration of Jeffrey Alderman in Support of American Blind & Wallpaper Factor Inc.'s Opposition to Google Inc.'s Motion for Summary Judgment (Docket Item No. 266) (the "Alderman Declaration") and Exhibits A and B to the Alderman Declaration. Google argues that the challenged declaration and accompanying exhibits lack foundation, relevance, constitute inadmissible hearsay, and/or violate the best evidence rule. Google's objections should be overruled because the testimony contained in the Alderman Declaration is based on Mr. Alderman's personal knowledge and first-hand observations as the Director of Business Development and E-Commerce for American Blind, is relevant insofar as it raises triable issues of fact regarding American Blind's trademark rights, and the best evidence rule does not apply. Rule 56(e) of the Federal Rules of Civil Procedure provides that "affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Fed. R. Civ. P. 56(e). "Personal knowledge may be inferred from the declarant's position and the nature of his role." Kaypro v. Justus, 218 F.3d 1070, 1075 (9th Cir. 2000) (credit manager's declaration was adequate where manager had held position for five years and he indicated that he had personal knowledge of facts to which he testified); Barthelemy v. Air Lines Pilots Ass'n, 897 F.2d 999, 1018 (9th Cir. 1990) (corporate officer's personal knowledge of various corporate activities could be presumed); Self-Realization Fellowship Church v. Ananda Church of SelfRealization, 206 F.3d 1322, 1330 (9th Cir. 2000) (same). Mr. Alderman testifies that he has personal knowledge of the facts contained in his declaration, and, as an employee of American Blind since 2001, currently as the Director of Business Development and E-Commerce, he was in a position to have such knowledge. See 1 of Alderman Declaration. Mr. Alderman is one of the most senior executives at American Blind. Mr. Alderman's declaration is properly admitted because he meets the requisite standard Case No. C 03-5340 JF (RS) Case No. C 03-5340 JF (RS) -1- Response to Google's Obj's to Evid Submitted by ABWF in Opp. To Submitted Response to Google's Obj's to Evid Google's MSJ by ABWF in Opp. To Google's MSJ Case 5:03-cv-05340-JF Document 291 Filed 02/13/2007 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 of personal knowledge under Federal Rule of Civil Procedure 56(e). Since he is testifying regarding information within his personal knowledge, his testimony is not hearsay. Google further objects that Mr. Alderman cannot testify about the manner and scope of use of American Blind's trademarks in American Blind's catalogues, scripts, and e-mail campaigns due to the best evidence rule contained in Federal Rule of Evidence 1002. This is incorrect. Mr. Alderman is permitted to testify about the manner in which the American Blind Marks have been used without requiring the submission of documentary evidence. E.g., B. R. Baker Co. v. Lebow Bros., 150 F.2d 580 (C.C.P.A. 1945) ("While the oral testimony of a single interested witness must necessarily have its weaknesses, we know of nothing in trade-mark law which justifies the rejection of such proof if it is sufficiently probative."); 2 McCarthy on Trademarks 16:20, p. 16-37 (2002) ("Oral testimony, even of a single witness, if `sufficiently probative,' may suffice to prove priority.") Nevertheless, Mr. Alderman's declaration is more than simply "oral" testimony without corroborating documents -- he has provided the Court with exemplars of the catalogues, scripts, and e-mail campaigns that Mr. Alderman testifies about. See, e.g., Alderman Decl., Ex. A-G. Certainly, nothing in the best evidence rule requires that every example of use of a trademark be submitted into evidence. Thus, Mr. Alderman's testimony is permitted, and the Court should overrule Google's objections. As Google is well aware, most of the facts contained in the Alderman Declaration are also established in deposition testimony taken by Google of three American Blind witnesses -- Mr. Alderman, Gerald Curran, and Michael Layne. Rather than burden the Court with numerous deposition citations and exhibits, American Blind decided to efficiently summarize the material facts in a declaration by the person with the most knowledge. If the Court is at all inclined to sustain Google's objection, American Blind requests leave to supplement the record to include the deposition evidence of American Blind's use of its marks that Google obtained from Messrs. Alderman, Curran, and Layne. American Blind will have this alternative evidence available at the summary judgment hearing in the event the Court wishes to receive it. -2Case No. C 03-5340 JF (RS) Response to Google's Obj's to Evid Submitted by ABWF in Opp. To Google's MS Case 5:03-cv-05340-JF Document 291 Filed 02/13/2007 Page 4 of 4

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