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

Filing 39

BRIEF in Opposition to 30 MOTION for Summary Judgment and Memorandum of Law in Support Thereof (Oral Argument Requested) filed by Plaintiff Video Professor, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10)(Smith, Gregory) Modified on 11/20/2009 to remove repetitive text (sah2, ).

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

Doc. 39 Att. 1

EXHIBIT 1

Dockets.Justia.com

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil. Action No. 09-cv-00636-REB-KLM VIDEO PROFESSOR, INC. a Colorado corporation, Plaintiff, V. AMAZON.COK INC., a Delaware corporation, Defendant.

AFFIDAVIT OF BETTYE HARRISON

The Affiant, being of lawful age and duly sworn upon her oath, states and deposes as follows: I_ 2. My naive is Bettye Harrison. I am President of Video Professor, Inc. C VPI"), VPI has been in the business of developing, marketing, and distributing for sale to

retailers and the general public computer learning products including video tapes and CD-ROMs for over 20 years. 3. VPI has continuously used the name VIDEO PROFESSOR in connection with the

marketing and promotion of its business and products since at least as early as April 1987. 4. Since 1987, VPl has invested hundreds of millions of dollars in advertising,

marketing and promoting the VIDEO PROFESSOR brand and designated products, including the running of television advertisements and infomercial,s throughout the United States, and advertisement and marketing through the Internet via its website located at "videoprofessor.corn" and other fornns of Internet advertising.

5.

Millions of UPI's VIDEO PROFESSOR-branded products have been distributed

and are used worldwide. 6. The VIDEO PROFESSOR mark, as used in connection with VPI's business and

the sale of its products, is world-famous, inherently distinctive, and as a result of VPI's extensive use, advertising and promotional efforts as described above, the VIDEO PROFESSOR mark is well-known and is recognized by customers around the world as signifying and representing VPI's business and high quality products. 7. On August 29, 1989, VPI was duly issued United States Trademark Registration

Number 1566793 for the trademark words "VIDEO} PROFESSOR" used in connection with a design, and on January 2, 1990, United States Trademark Registration Number 1.574578 for the trademark words "VIDEO PROFESSOR." 8. As a result of the advertising and expenditures previously described, VPI has

established considerable goodwill in the VIDEO PROFESSOR trademark, which is an invaluable asset of substantial and inestimable worth to VPI. 9. Video Professor has a long-established presence as an Internet retailer. Currently, Through its website, VPI

VPI uses, among others, the domain name "vidooprofessor.corn".

provides important information to its customers and potential customers regarding VPI's products, as well as an interactive means by which potential customers may order its products online. 10. VPI' s website advertising and sales are a significant and rapidly expanding

portion of its business. Over the past three years, VPI's online sales have represented over 45% of its total sales.

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11.

Since 2007, VP1 has converted approximately 3% of visitors to its Web site into a

sale who performed an Internet search for "video professor"; or 73,654 out of 2,409,271. 12. 13. UPI's average net profit per customer is $112.00. Based on the 6188 click-throughs admitted by Amazon to its Web site from its

Sponsored Fink generated by its purchase from search engines of the keyword. "video professor." VPI has suffered damages in the amount of not less than $20,000; i.e., 6188 click-throughs times 3% times $112.00 per sale. 14. VPI 's estimated market awareness as a source of computer learning CD ROMs

products in this country exceeds 90%, meaning that over 90% of U.S. citizens are aware of Video Professor as a purveyor of computer learning CD-ROMs products. Further affiant sayeth naught.

) ) ss. COUNTY OF JEFFERSON ) STATE OF COLORADO The foregoing Affidavit was subscribed and sworn to before me this 0x' day of November 2009, by Bettye Harrison.

4y C^a mission ExOes

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