Apple Inc. v. Samsung Electronics Co. Ltd. et al

Filing 1602

Statement APPLE'S OFFER OF PROOF REGARDING EVIDENCE OF ITS IPHONE AND IPAD ADVERTISEMENTS by Apple Inc.. (Jacobs, Michael) (Filed on 8/7/2012)

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1 2 3 4 5 6 7 8 9 10 11 12 HAROLD J. MCELHINNY (CA SBN 66781) hmcelhinny@mofo.com MICHAEL A. JACOBS (CA SBN 111664) mjacobs@mofo.com RACHEL KREVANS (CA SBN 116421) rkrevans@mofo.com JENNIFER LEE TAYLOR (CA SBN 161368) jtaylor@mofo.com ALISON M. TUCHER (CA SBN 171363) atucher@mofo.com RICHARD S.J. HUNG (CA SBN 197425) rhung@mofo.com JASON R. BARTLETT (CA SBN 214530) jasonbartlett@mofo.com MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: (415) 268-7000 Facsimile: (415) 268-7522 WILLIAM F. LEE william.lee@wilmerhale.com WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 Telephone: (617) 526-6000 Facsimile: (617) 526-5000 MARK D. SELWYN (SBN 244180) mark.selwyn@wilmerhale.com WILMER CUTLER PICKERING HALE AND DORR LLP 950 Page Mill Road Palo Alto, California 94304 Telephone: (650) 858-6000 Facsimile: (650) 858-6100 Attorneys for Plaintiff and Counterclaim-Defendant APPLE INC 13 UNITED STATES DISTRICT COURT 14 NORTHERN DISTRICT OF CALIFORNIA 15 SAN JOSE DIVISION 16 17 APPLE INC., a California corporation, Plaintiff, 18 19 20 21 22 v. SAMSUNG ELECTRONICS CO., LTD., a Korean business entity; SAMSUNG ELECTRONICS AMERICA, INC., a New York corporation; SAMSUNG TELECOMMUNICATIONS AMERICA, LLC, a Delaware limited liability company, 23 Case No. 11-cv-01846-LHK APPLE’S OFFER OF PROOF REGARDING EVIDENCE OF ITS IPHONE AND IPAD ADVERTISEMENTS Defendants. 24 25 26 27 28 APPLE’S OFFER OF PROOF REGARDING EVIDENCE OF ITS IPHONE AND IPAD ADVERTISEMENTS CASE NO. 11-CV-01846-LHK dc-686895 1 Pursuant to Federal Rule of Evidence 103(a)(2), plaintiff Apple Inc. makes this offer of 2 proof regarding exhibits PX12, PX13, and PX14, summary exhibits comprising video clips 3 featuring Apple’s iPhone and iPad products. PX12 and PX13 feature Apple advertisements for its 4 iPhone and iPad products, respectively, that aired within the United States. (Tr. at 643:12–644:2; 5 646:21–647:4.) PX14 contains clips from television programs featuring iPhone and iPad 6 products. (Id. at 651:11–22.) PX12, PX13, and PX14 each contain two parts: (1) a DVD 7 containing video clips and (2) an index providing information such as title, date, and file name for 8 each clip. (See PX12; PX13; PX14.) These exhibits are admissible because they are relevant to 9 Apple’s trade dress dilution claims. As discussed below, PX12–PX14 are not needless 10 presentations of cumulative evidence, and Samsung has never asserted that they are prejudicial, 11 misleading, confusing, a source of undue delay, or a waste of time. Finally, Philip Schiller, 12 Apple’s Senior Vice President of Worldwide Marketing, testified about exhibits PX12–PX14 and 13 laid a proper foundation for them to come into evidence. (Tr. at 643:12–644:2; 646:21–647:4; 14 651:11–22.) 15 Apple offered exhibits PX12–PX14 to prove that its iPhone trade dress and iPad trade 16 dress are famous, an element of Apple’s trade dress dilution claims. See 15 U.S.C. 17 § 1125(c)(2)(A)(i). In assessing fame, courts consider evidence showing “the duration and extent 18 of advertising and publicity” of the trademark or trade dress. Playboy Enters. v. Netscape 19 Commc’ns Corp., 354 F.3d 1020, 1031 (9th Cir. 2004). To be probative of this factor, however, 20 the content of the “advertising and publicity” must be “of the mark.” 15 U.S.C. 21 § 1125(c)(2)(A)(i). Cf. First Brands Corp. v. Fred Meyer, Inc., 809 F.2d 1378, 1383 (9th Cir. 22 1987) (“Evidence of sales, advertising and promotional activities may be relevant in determining 23 whether a trade dress has acquired a secondary meaning. However, the advertising and 24 promotional activities must involve ‘image advertising,’ that is, the ads must feature in some way 25 the trade dress itself.” (internal citation omitted).) 26 The clips contained in the DVD portions of exhibits PX12–PX14 establish Apple’s 27 advertising of its iPhone and iPad trade dress, and the extensive publicity they have received. 28 Each of the clips contained in PX12–PX14 prominently features the iPhone or iPad trade dress. APPLE’S OFFER OF PROOF REGARDING EVIDENCE OF ITS IPHONE AND IPAD ADVERTISEMENTS CASE NO. 11-CV-01846-LHK dc-686895 1 1 Each of these clips differs. Collectively, these clips establish that the iPhone trade dress and iPad 2 trade dress have been the subject of extensive advertising and publicity and are therefore famous. 3 See Jada Toys v. Mattel, Inc., 518 F.3d 628, 635 (9th Cir. 2008). 4 Samsung filed written objections to Exhibits PX12–PX14 on July 30. (Dkt. No. 1468 5 at 4:10-14.) The Court overruled Samsung’s objections, observing that “the advertisements and 6 television programs are . . . offered to establish fame, an element of [Apple’s] trade dress claim.” 7 (Dkt. No. 1520 at 4:4–8.) Despite this ruling, Samsung objected again to PX12–PX14 during 8 trial on August 3, this time asserting that the DVD portions of these exhibits are cumulative. 9 (Tr. at 647:22-25; 651:23–652:1.) The Court sustained these objections and allowed only the 10 indices into evidence. (Id. at 655:21-25.) 11 The DVDs contained in PX12–PX14 are not cumulative of anything in the record. They 12 are not cumulative of the indices, which provide only identifying information such as title, date, 13 and file name, similar to a book’s table of contents. Because the indices do not summarize the 14 substance of the advertisements or show that the iPhone trade dress and iPad trade dress are 15 prominently displayed, the DVDs are not cumulative of them. 16 Moreover, the DVDs are not cumulative of PX127 and PX128, the two advertisements 17 played before the jury. (Tr. at 642:8–643:11; id. at 645:14–18.) PX127 and PX128 are each 18 single advertisements for the iPhone and iPad, respectively. The video clips contained in PX12 19 and PX13 are not cumulative of the single advertisements contained in PX127 and PX128 20 because the entire group of ads is probative of “the extent of advertising and publicity,” a 21 “relevant factor” for assessing fame. 15 U.S.C. § 1125(c)(2)(A)(i) (emphasis added). Moreover, 22 PX14 contains media clips featuring the iPhone and iPad, not advertisements. Because PX14 23 differs substantively from PX127 and PX128, it cannot be cumulative of those exhibits. Cf. 24 United States v. Cruz-Garcia, 344 F.3d 951, 956 (9th Cir. 2003) (“[E]vidence clearly was not 25 cumulative [where] it gave the jury information it learned from no other source.”). Moreover, 26 since each clip is from different news and entertainment shows, the collection of clips in PX14 is 27 not itself cumulative. 28 APPLE’S OFFER OF PROOF REGARDING EVIDENCE OF ITS IPHONE AND IPAD ADVERTISEMENTS CASE NO. 11-CV-01846-LHK dc-686895 2 1 2 CONCLUSION Apple respectfully submits this offer of proof concerning PX12, PX13 and PX14. 3 4 Dated: August 7, 2012 MORRISON & FOERSTER LLP 5 6 By: 7 /s/ Michael A. Jacobs Michael A. Jacobs Attorneys for Plaintiff APPLE INC. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 APPLE’S OFFER OF PROOF REGARDING EVIDENCE OF ITS IPHONE AND IPAD ADVERTISEMENTS CASE NO. 11-CV-01846-LHK dc-686895 3

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