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

Filing 991

Administrative Motion to File Under Seal Documents Re Apples Opposition To Samsungs Motion To Exclude Opinions Of Certain Of Apple Experts filed by Apple Inc.. (Attachments: #1 Declaration Of Cyndi Wheeler In Support Of Apples Administrative Motion To File Under Seal Documents Re Apples Opposition to Exclude Apple Experts Opinions, #2 [Proposed] Order Granting Apples Administrative Motion To File Under Seal, #3 Apples Opposition To Samsungs Motion To Exclude Opinions Of Certain Of Apples Experts, #4 Declaration Of Mia Mazza In Support Of Apples Opposition To Samsungs Motion To Exclude Opinions Of Certain Of Apples Experts, #5 Exhibit Mazza Decl. Ex. D, #6 Exhibit Mazza Decl. Ex. F, #7 Exhibit Mazza Decl. Ex. G, #8 Exhibit Mazza Decl. Ex. J, #9 Exhibit Mazza Decl. Ex. K, #10 Exhibit Mazza Decl. Ex. L, #11 Exhibit Mazza Decl. Ex. R, #12 Exhibit Mazza Decl. Ex. S, #13 Exhibit Mazza Decl. Ex. T, #14 Exhibit Mazza Decl. Ex. U, #15 Exhibit Mazza Decl. Ex. V, #16 Exhibit Hauser Decl. Ex. B, #17 Exhibit Hauser Decl. Ex. C, #18 Exhibit Hauser Decl. Ex. D, #19 Exhibit Hauser Decl. Ex. E, #20 Exhibit Musika Decl. Ex. S, #21 Exhibit Musika Decl. Ex. T, #22 Exhibit Musika Decl. Ex. U, #23 [Proposed] Order Denying Samsungs Motion To Exclude Opinions Of Apples Experts)(Jacobs, Michael) (Filed on 5/31/2012) Modified on 6/3/2012 attachment #1 Sealed pursuant to General Order No. 62 (dhm, COURT STAFF).

Exhibit F

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UNITED STATES DISTRICT COURT NORTHERN
DISTRICT OF CALIFORNIA SAN JOSE DIVISION
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APPLE INC., a California corporation

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PLAINTIFF,
-againstSAMSUNG ELECTRONIC CP., LTD., a Korean
business entity; SAMSUNG ELECTRONICS
AMERICAN, INC., A New York Corporation;
SAMSUNG TELECOMMUNICATIONS AMERICA, LLC,
a Delaware limited liability company,

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DEFENDANTS.
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***CONFIDENTIAL***

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VIDEOTAPED DEPOSITION OF RUSSELL WINER
New York, New York
Friday, April 27, 2012

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Reported by:
Rebecca Schaumloffel, RPR, CLR
JOB NO. 48805
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THE VIDEOGRAPHER:

This is the

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start of tape label one in the

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videotaped deposition of Russell S.

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Winer in the matter Apple, Inc.,

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versus Samsung Electronics Company,

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Limited.

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The time is approximately 9:16 a.m.

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Appearances have already been noted by

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the Court Reporter.

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Today is April 27, 2012.

Will the Court Reporter please

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swear in the witness.

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R U S S E L L

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witness, having been first duly sworn by a

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Notary Public of the State of New York, was

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examined and testified as follows:

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EXAMINATION BY

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MR. ZELLER:

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Q.

S.

W I N E R, called as a

Please tell us your full name for

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the record.

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A.

Russell S. Winer.

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Q.

What does the S. stand for?

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A.

Stuart.

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Q.

Have you ever gone by any other

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name?

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things I would look at but not referred to as

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Sleekcraft factors.

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Q.

Are you offering a legal opinion

about likely to confusion?

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MS. HAGBERG:

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Objection; outside

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the scope.

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A.

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I am not offering a legal

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opinion.

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actual confusion, how it contributes to the

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infringement of Apple's trade dress.

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Q.

I am offering some evidence of

Is infringement of Apple's trade

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dress something that is a recognized field

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within your expertise?

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MS. HAGBERG:

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Were you finished?

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MR. ZELLER:

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MS. HAGBERG:

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A.

Objection; vague.

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Yes.

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Objection; vague.

If I was asked to determine

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whether or not consumers would be confused

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between two products, the elements of the

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Sleekcraft factors many of them would be ones

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I would use just by my marketing expertise.

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I would not refer to them as Sleekcraft

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factors.

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Q.

I have never done that.
Why do you call them Sleekcraft
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in this report?
A.

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The attorneys suggested the

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Sleekcraft factors as a framework that could

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be used to understand the likelihood of

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confusion that can exist in the marketplace

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as a framework to tie together a number of

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different elements.

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Q.

Regardless of what they are

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called, is there anything that you can point

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to in the peer-reviewed literature in your

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field where the methodology of these factors

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are applied?

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A.

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Not in the peer-reviewed

literature.

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Q.

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Have you, yourself, ever written

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any kind of scholarly article or published

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materials where you applied the methodology

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of these factors?

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MS. HAGBERG:

Objection; vague.

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A.

No.

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Q.

Had you ever engaged in such an

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analysis prior to the time that you were

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engaged as an expert in this report?

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MS. HAGBERG:

Objection; form

and vague.

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A.

No.

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Q.

Is there anything you can point

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to in your field to show that these factors,

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called Sleekcraft or something else, are in

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fact accepted and recognized methodology

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applied by people in your field?

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MS. HAGBERG:

Objection; vague.

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Object to the form.

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A.

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I have in the classroom asked

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students to evaluate the similarity and

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possible confusion between different brands.

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And brands is a classroom exercise and given

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them a set of characteristics that they

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should use to judge that similarity or

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potential confusion.

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Sleekcraft factors and most of the items on

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this list were in that set of items that I

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asked the students to consider.

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Q.

I never called them

Anything else you can point to in

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your field?

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A.

No.

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Q.

If I understood in the context of

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these classroom exercises you're talking

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about, all of the factors that are referenced

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here in the Sleekcraft factors were not

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something that you instructed your students

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on; is that correct?

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MS. HAGBERG:

Objection;

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misstates testimony, vague.

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A.

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I think what I said is that many

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of these were the criteria that I asked them

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to use.

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Q.

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Not all of them.

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students in the context of these exercises to

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consider?

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Which ones did you not ask your

MS. HAGBERG:
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Objection; vague.

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Particularly, when it listed in

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paragraph 100 as particularly G and H.
Q.

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You are referring to "Defendants

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intended selecting the mark" and "Likely to

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have expansion of the product lines"?

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A.

Yes.

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Q.

Focusing on the Sleekcraft

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factors that you apply here in your analysis,

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and specifically focusing on A, strength of

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the mark.

Do you see that?

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A.

Yes, I do.

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Q.

Are there objective definable

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criteria in your field that define the

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strength of a mark?

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A.

I think if you take a look at

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some of the measures I talk about in the

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case -- in the statement, such as brand

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equity surveys that are conducted by various

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independent branding consultings, consulting

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firms, they provide indications of the

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strength of the mark.

There are other kinds

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of survey work that I have seen conducted by

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companies that talk about, again, how

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distinctive certain marks are relative to

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others.

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that is spent on advertising and other

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marketing support that would help to

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contribute to the strength of the mark.

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And, of course, we look at money

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Q.

Anything else?

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A.

I think, also, just the sales of

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the products, also, have some indication of

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how strong the mark is.

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Q.

Anything else?

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A.

Well, I think there is some

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non-quantitative measures as well in terms of

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just my expertise in terms of being able to

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compare the distinctiveness, brand

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identities, the strength of what we call the

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brand associations that people have with

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brands.

So there are many different measures

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that can be used to determine the strength of

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the mark.

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Q.

Anything else?

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A.

No, that's all I can think of

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right now.

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Q.

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In your field, is one factor in

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evaluating the strength of the mark the

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exclusivity by which the plaintiff has used

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it and the length of time?

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A.

I don't think length of time is

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necessarily correlated with strength of the

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mark.

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Q.

I didn't ask if it was

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necessarily correlated.

I am asking about in

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your field, please tell us, in your field, is

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one factor in evaluating the strength of the

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mark the exclusivity or lack of exclusivity

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by which the plaintiff has used it?

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A.

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exclusivity.

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that.

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I don't know the definition of
I wasn't asked to opine on

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Q.

Is the extent of exclusivity of

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the use of a mark a criteria, criterion that

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your field recognizes?

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THE VIDEOGRAPHER:

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5:17.

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The time is

deposition.

That's the end of today's

We are going off the record.

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(Whereupon, at 5:17 p.m., the

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Examination of this Witness was

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concluded.)

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__________________________
RUSSELL WINER

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Subscribed and sworn to before me
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this _____ day of ________, 2012.

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__________________________
NOTARY PUBLIC

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