Video Professor, Inc. v. Amazon.com, Inc.

Filing 30

MOTION for Summary Judgment and Memorandum of Law in Support Thereof (Oral Argument Requested) by Defendant Amazon.com, Inc.. (Attachments: # 1 Affidavit of Eric Herrmann, # 2 Exhibit A-1, # 3 Exhibit A-2, # 4 Exhibit A-3, # 5 Exhibit A-4, # 6 Affidavit of Marc Levy, # 7 Exhibit A-5, # 8 Exhibit A-6, # 9 Exhibit A-7, # 10 Exhibit A-8, # 11 Exhibit A-9, # 12 Exhibit A-10, # 13 Exhibit A-11, # 14 Exhibit A-12, # 15 Exhibit A-13, # 16 Exhibit A-14, # 17 Exhibit A-15)(Levy, Marc)

Video Professor, Inc. v. Amazon.com, Inc.

Doc. 30 Att. 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:09-CV-00636-REB-KLM VIDEO PROFESSOR, INC. Plaintiff, v. AMAZON.COM, INC. Defendant.

DECLARATION OF MARC LEVY

I, Marc Levy, declare as follows: 1. I am an attorney at Faegre & Benson, LLP in Denver, Colorado, which represents Defendant Amazon.com, Inc. (" mazon", in connection with the aboveA ) referenced matter. I submit this Declaration in support of Amazon' Motion for Summary s Judgment and Memorandum of Law in Support Thereof. I have personal knowledge of the facts recited below, and if called upon to testify concerning them under oath, I could and would do so competently. 2. Attached hereto as Exhibit A-5 is a true and correct copy of a letter from Defendant Video Professor, Inc. (" PI", in which it acknowledges that it was an V) Amazon vendor from December 12, 2003, through September 19, 2008.

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3. The vendor relationship between Amazon and VPI was governed by Amazon' Vendor Manual. Attached hereto as Exhibit A-6 is a true and correct copy of s the Vendor Manual. 4. Attached hereto as Exhibit A-7 is a true and correct copy of a letter countersigned by VPI on December 18, 2003, in which it acknowledged that it had received a copy of the Vendor Manual and that it had reviewed and accepted the requirements of the Vendor Manual. 5. Attached hereto as Exhibit A-8 are true and accurate copies of select pages of Plaintiff' Amended Answers to Defendant' First Set of Interrogatories. In s s Interrogatory No. 10, Defendant asked Plaintiff to "dentify each instance in which you I contend a consumer was actually confused into believing that VPI was the source of any products offered on Amazon.com." VPI responded that it " id not document each d instance. However, on numerous occasions over the past several years, consumers having purchased ` rofessor Teaches' P CDs have called VPI wanting to return the CDs to VPI, or have actually returned ` rofessor Teaches CDs to VPI' warehouse." P s 6. Attached hereto as Exhibit A-9 is a true and accurate copy of Plaintiff' s Answers to Defendant' First Set of Requests for Admissions. In Request for s Admission No. 2, VPI admitted that it "s unaware of any instance in which a consumer i who entered `ideo professor' an Internet search engine and then clicked on an v in Amazon Sponsored Advertisement believed that Amazon was a favored or authorized dealer of the VPI products displayed."

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7. Attached hereto as Exhibit A-10 are true and accurate copies of documents Bates numbered VPI 443­44. These documents were produced in response to Amazon' Request for Production No. 12, in which it requested " ll Documents referring s A or relating to the rate(s) at which you convert hits on the www.videoprofessor.com website to sales of VIDEO PROFESSOR products from January 2007 through April 2009." 8. Attached hereto as Exhibit A-11 are true and correct copies of pages from the VPI website at www.videoprofessor.com printed on October 15, 2009, illustrating the various video-based computer learning products VPI sells. As shown in the exhibit, VPI' products are designed to help consumers learn how to use a number of popular s computer software and technology products, including Microsoft® Windows®, Microsoft® Excel®, Microsoft® Outlook®, and eBay®, to name just several. Video Professor liberally uses the trademarks of Microsoft, eBay and others on its website to promote its products with titles including " earn Windows®,"" earn Excel®,"and " earn Outlook®" L L L and " earn eBay®." In very fine print, Video Professor indicates on its website that none L of these companies sponsor or endorse Video Professor' products. Video Professor s also uses the trademarks of Microsoft, eBay and others in its television commercials. Examples of these commercials can be found at: · · · http://www.youtube.com/watch?v=bJF-1nMQpBU; http://www.youtube.com/watch?v=tHNDzop1OEo; and http://www.responsetube.com/video/137ed11d6ae770b/Video-ProfessorInfomercial-Televison-Commercial. 3

9. Attached hereto as Exhibit A-12 is a true and accurate copy of a Google search results page generated by a search for the phrase " arn microsoft windows" le conducted on October 13, 2009. This search results page shows a sponsored link for VPI, indicating that VPI bid on the trademarks Microsoft® and Windows®. 10. Attached hereto as Exhibit A-13 is a true and accurate copy of a Google search results page generated by a search for the phrase " arn microsoft excel" le conducted on October 19, 2009. This search results page shows a sponsored link for VPI, indicating that VPI bid on the trademarks Microsoft® and Excel®. 11. Attached hereto as Exhibit A-14 is a true and accurate copy of a Google search results page generated by a search for the phrase " arn microsoft outlook" le conducted on October 19, 2009. This search results page shows a sponsored link for VPI, indicating that VPI bid on the trademarks Microsoft® and Outlook®. 12. Attached hereto as Exhibit A-15 is a true and accurate copy of a Google search results page generated by a search for the phrase " arn ebay"conducted on le October 13, 2009. This search results page shows a sponsored link for VPI, indicating that VPI bid on the trademark " Bay." e

I declare under penalty of perjury that the foregoing is true and correct.

Executed this 21st day of October 2009 s/ Marc Levy___ Marc Levy 4 ________