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

Filing 88

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

Doc. 88

Case 5:03-cv-05340-JF

Document 88

Filed 01/20/2006

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1 Michael H. Page (SBN 154913) Mark A. Lemley (SBN 155830) 2 Klaus H. Hamm (SBN 224905) KEKER & VAN NEST, LLP 3 710 Sansome Street San Francisco, CA 94111-1704 4 Telephone: [phone] Facsimile: [phone] 5 Attorneys for Plaintiff/Counter-Defendant 6 GOOGLE INC. and Third-Party Defendants ASK JEEVES, INC. and EARTHLINK, INC. 7 [additional counsel appear on next page] 8 9 10 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ) Case No. C 03-5340-JF (EAI) ) Plaintiff, ) JOINT FED. R. CIV. P. 26(f) REPORT, ) CASE MANAGEMENT STATEMENT v. ) AND PROPOSED CASE MANAGEMENT ) ORDER AMERICAN BLIND & WALLPAPER ) FACTORY, INC., a Delaware corporation ) Date: February 3, 2006 d/b/a decoratetoday.com, Inc.; and DOES 1- ) Time: 10:30 a.m. 100, inclusive, ) Courtroom: 3, 5th Flr. ) Judge: Hon. Jeremy Fogel Defendants. ) ) AMERICAN BLIND & WALLPAPER ) FACTORY, INC., a Delaware corporation ) d/b/a decoratetoday.com, Inc., ) ) Counter-Plaintiff, ) ) v. ) ) GOOGLE, INC., AMERICA ONLINE, INC., ) NETSCAPE COMMUNICATIONS ) CORPORATION, COMPUSERVE ) INTERACTIVE SERVICES, INC., ASK ) JEEVES, INC., and EARTHLINK, INC. ) ) Counter-Defendants/ ) Third-Party Defendants ) ) )

11 GOOGLE INC., a Delaware corporation, 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

JOINT CASE MANAGEMENT CONFERENCE STATEMENT Case No. C 03-5340-JF (EAI)

Dockets.Justia.com

Case 5:03-cv-05340-JF

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1 Robert N. Phillips (SBN 120970) Ethan B. Andelman (SBN 209101) 2 HOWREY LLP 525 Market Street, Suite 3600 3 San Francisco, CA 94105 Telephone: [phone] Facsimile: [phone] 5 David A. Rammelt (Admitted Pro Hac Vice) Susan J. Greenspon (Admitted Pro Hac Vice) 6 Dawn M. Beery (Admitted Pro Hac Vice) KELLEY DRYE & WARREN LLP 7 333 West Wacker Drive, Suite 2600 Chicago, IL 60606 8 Telephone: [phone] Facsimile: [phone] 9 Attorneys for Defendant/Counter-Plaintiff 10 AMERICAN BLIND AND WALLPAPER FACTORY, INC. 11 12 Stephen E. Taylor (SBN 58452) Stacey L. Wexler (SBN 184466) 13 TAYLOR & COMPANY LAW OFFICES, INC. One Ferry Building, Suite 355 14 San Francisco, California 94111 Telephone: [phone] Facsimile: [phone] 16 Attorneys For Third-Party Defendants AMERICA ONLINE, INC., 17 NETSCAPE COMMUNICATIONS CORPORATION, and COMPUSERVE 18 INTERACTIVE SERVICES, INC. 19 20 21 22 23 24 25 26 27 28
JOINT CASE MANAGEMENT CONFERENCE STATEMENT Case No. C 03-5340-JF (EAI)

Case 5:03-cv-05340-JF

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1

Plaintiff/Counter-Defendant Google Inc. ("Google"), Defendant/Counter-Plaintiff American

2 Blind & Wallpaper Factory, Inc. ("American Blind"), and Third-Party Defendants America Online, 3 Inc. ("America Online"), Netscape Communications Corp. ("Netscape"), Compuserve Interactive 4 Services, Inc. ("Compuserve"), Ask Jeeves, Inc. ("Ask Jeeves"), and Earthlink, Inc. ("Earthlink") 5 submit the following joint case management conference statement. 6 I. 7 8 DESCRIPTION OF THE CASE A. Background

Google filed this action against American Blind on November 26, 2003, seeking a declaratory

9 judgment that its current policy regarding the sale of keyword-triggered advertising does not constitute 10 trademark infringement. American Blind contends that many of American Blind's competitors ­ with 11 the assistance and encouragement of search engines such as Google ­ have attempted to confuse 12 American Blind's customers and capitalize illegally on American Blind's goodwill and reputation by 13 purchasing advertising keywords identical or substantially similar to American Blind's federally 14 registered and common law trademarks from the search engines, including Google. Google disagrees 15 that American Blind's customers are likely to be confused as a result of the purchase of such 16 keywords, or that Google assists in or encourages illegal conduct on the part of American Blind's 17 competitors. 18 American Blind filed counterclaims and third-party claims against Google, America Online,

19 Inc., Netscape Communications Corp., Compuserve Interactive Services, Inc., Askjeeves, Inc., and 20 Earthlink, Inc. for trademark infringement and dilution, unfair competition, and tortious interference 21 with prospective economic advantage. 22 Discovery is ongoing in this case. There are two pending discovery motions brought by

23 American Blind, which are scheduled to be heard by Judge Seeborg immediately before this case 24 management conference is held before the Court. 25 26 B. Principal Factual and Legal Issues

The principal factual and legal issues remain the same as they did in the parties' last joint case

27 management statement, filed on April 26, 2005. 28 1
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C.

Service of Process

There are no unserved parties. D. Additional Parties

Neither Google, American Blind, nor the Third-Party Defendants currently intend to join any

5 additional parties. 6 II. 7 ALTERNATIVE DISPUTE RESOLUTION The parties participated in a mediation before retired Judge Fern Smith on December 13, 2005.

8 The mediation did not result in settlement. 9 III. 10 11 IV. 12 13 14 15 16 17 18 19 20 21 22 23 INITIAL DISCLOSURES UNDER FED. R. CIV. P. 26(A) The parties have served their Rule 26 initial disclosures upon one another. CASE MANAGEMENT PLAN A. Discovery and Trial Schedule

The Court has adopted the following case management schedule: Cutoff of Fact Discovery All Parties' Expert Reports Due Rebuttal Expert Reports Due Cutoff of Expert Discovery Cutoff for filing Dispositive Motions Pretrial Conference Statement Pretrial Conference Trial Date American Blind's position: American Blind believes that the schedule in this case should be extended by six months. February 27, 2006 March 31, 2006 May 15, 2006 June 30, 2006 July 31, 2006 October 2, 2006 October 13, 2006 at 11:00 a.m. November 17, 2006 at 11:00 a.m.

24 American Blind has an outstanding discovery dispute with Google over Google's production of 25 documents. Over a period of several months, the parties negotiated a Stipulated Protective Order 26 which was entered by the Court on September 19, 2005. On October 26, 2005, the parties exchanged 27 their initial document production. Since that time, American Blind has diligently reviewed Google's 28 2
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1 voluminous production and discovered that Google has produced documents in response to only one of 2 American Blind's document requests, has not appropriately reviewed the documents it has produced 3 for confidentiality labels, has overdesignated the vast majority of documents it has produced, and has 4 not complied with Rule 34(b) in its production. In late December, after the long-delayed mediation in 5 this case, American Blind brought discovery motions on some of these issues which are currently 6 pending before Judge Seeborg; they are scheduled to be heard immediately before the Case 7 Management Conference. Additional discovery motions on document production and/or interrogatory 8 responses may be necessary if Google continues to refuse to abide by its discovery obligations. 9 Given the state of Google's document production, an additional six months is necessary to

10 adequately complete discovery. The schedule American Blind proposes is: 11 12 13 14 15 16 17 18 19 20 Cutoff of Fact Discovery All Parties' Expert Reports Due Rebuttal Expert Reports Due Cutoff of Expert Discovery Cutoff for filing Dispositive Motions Pretrial Conference Statement Pretrial Conference Trial Date Google's position: Google opposes American Blind's request to extend by six months the scheduling dates already August 28, 2006 September 29, 2006 November 15, 2006 December 29, 2006 January 31, 2007 April 2, 2007 April 13, 2007 at 11:00 a.m. May 18, 2007 at 11:00 a.m.

21 adopted by the Court. The parties have had more than enough time to complete discovery. Google 22 filed its complaint more than two years ago, on November 26, 2003. Although the Court stayed 23 discovery on June 21, 2004, that stay expired eight months ago, on May 11, 2005. As explained in its 24 oppositions to American Blind's discovery motions, Google has diligently complied with its discovery 25 obligations. Google has made multiple document productions--and produced more than 100,000 26 pages of documents--in response to American Blind's extensive document requests. American 27 Blind's claim that Google has produced documents in response to only one of its requests is simply 28 3
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1 untrue. While Google prefers to avoid further delay, it has informed American Blind that it would 2 accept a compromise whereby the Court extends all deadlines by one month. 3 4 5 6 Dated: January 20, 2006 7 8 9 10 11 Dated: January 20, 2006 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4
JOINT CASE MANAGEMENT CONFERENCE STATEMENT Case No. C 03-5340-JF (EAI)

B.

Trial Duration

The parties estimate a trial of approximately two weeks.

KEKER & VAN NEST, LLP By: /s/ Klaus H. Hamm KLAUS H. HAMM Attorneys for Plaintiff/Counter-Defendant GOOGLE INC. HOWREY LLP By: /s/ Robert N. Phillips ROBERT N. PHILLIPS David A. Rammelt Susan J. Greenspon Dawn M. Beery KELLEY DRYE & WARREN LLP 333 West Wacker Drive, Suite 2600 Chicago, IL 60606 Attorneys for Defendant/Counter-Plaintiff AMERICAN BLIND AND WALLPAPER FACTORY, INC. TAYLOR & COMPANY LAW OFFICES, INC. By: /s/ Stacey L. Wexler STACEY L. WEXLER Attorneys for Third-Party Defendants AMERICA ONLINE, INC., NETSCAPE COMMUNICATIONS CORPORATION, and COMPUSERVE INTERACTIVE SERVICES, INC.

Dated: January 20, 2006

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IT IS SO ORDERED.

Dated: January ___, 2006

___________________________________________ Hon. Jeremy Fogel United States District Court Judge

ATTESTATION AS TO CONCURRENCE I, Klaus H. Hamm, under penalty of perjury of the laws of the United States of America, attest

10 that concurrence in the filing of this document has been obtained from each of the other signatories to 11 this document. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5
JOINT CASE MANAGEMENT CONFERENCE STATEMENT Case No. C 03-5340-JF (EAI)

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