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

Filing 86

RESPONSE to 79 MOTION for Attorney Fees and to Declare Case Exceptional Pursuant to 15 U.S.C. § 1117 filed by Plaintiff Video Professor, Inc.. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2)(Lasater, Kieran)

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"HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY"

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

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Case No .

1:09-CV-00636- REB-KLM

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30(b)(6) DEPOSITION OF DAVID LAUGHLIN

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March 1, 2010

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VIDEO PROFESSOR, INC., Plaintiff, vs. AMAZON.COM, INC., Defendant.

APPEARANCES: Appearing on behalf of Plaintiff: Gregory C. Smith, Esq. FAIRFIELD & WOODS, PC E-mail: [e-mail]

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1700 Lincoln Street, Suite 2400 Denver, Colorado 80203

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Phone: [phone] Fax: [phone] - and -

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Jean Robertson, Esq. VIDEO PROFESSOR, INC.

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12055 West 2nd Place Lakewood, Colorado 80228

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Phone: [phone] Fax: [phone] Appearing on behalf of Defendant:

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Marc C. Levy, Esq. Jared B. Briant, Esq.

E-mail: [e-mail] E-mail: [e-mail]

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FAEGRE & BENSON LLP 1700 Lincoln Street, Suite 3200

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Denver, Colorado 80203

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Phone: [phone] Fax: [phone]

EXHIBIT

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Pursuant to Notice and the Federal Rules of
Civil Procedure , the deposition of DAVID LAUGHLIN, was taken on Monday , March 1,

called by Defendant ,

2010, commencing at 9:35 a.m., at 1700 Lincoln

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Street, Suite 3200, Denver , Colorado , before Carolyn
Leathers , Registered Merit Reporter, Certified

Realtime Reporter and Notary Public within and for the State of Colorado.

INDEX DEPOSITION OF DAVID LAUGHLIN EXAMINATION BY: Mr . Smith PAGE --5 --

Ms. Robertson Mr. Levy Mr. Briant

EXHIBITS

PAGE

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Exhibit 1 Notice of Deposition of Video Professor, Inc. Pursuant to Fed.R.Civ.P. 5

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30 ( b)(6) dated 2-19-10 Video Professor order page How It Works page from VideoProfessor.com 44 44

23 Exhibit 4 24 Google search results,
keywords " learn microsoft windows"

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PROCEEDINGS

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3 4 5 6 7 8 9 10 11 12 13 14 15 BY MR. LEVY: Q the record. A Q A Q

(Mr. Briant was not present at the
commencement of the proceedings.) (Exhibit 1 marked.) DAVID LAUGHLIN, being first duly sworn in the above cause, was examined and testified as follows: EXAMINATION

Could you please state your full name for

David Michael Laughlin. And what's your address, Mr. Laughlin? 23351 Morning Rose Drive in Golden. Okay. You understand that you were just

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placed under oath? A Q Yes, I do. And therefore, the testimony you are about

to give in this deposition has the same force and effect as if you were giving it in a court of law. Do you understand that? A Q I understand. Our court reporter, Carolyn here, is

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taking everything that you and I and your attorney says down on a transcript, and for that reason, it's

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very important that all of us give verbal answers, responses, statements, so that Carolyn can get that all down. A Q Do you understand that? I understand. Also, some verbal responses can be a

little vague or ambiguous, such as um-hum or huh-uh and things of that sort, and so I would encourage you to try to avoid those, and if any of us starts falling into that, I'll do my best to try to recognize that, okay?

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A
Q

Okay.
I'm going to try my best to ask you clear

questions that you understand. I will probably fail on more than one occasion to do that, and if I do and you do not understand a question I'm asking, will you please let me know? A Q Certainly. Is there any reason why you cannot give

your best, truthful, accurate testimony here today? A Q A Q I can't think of a reason. Have you ever been deposed before? No, I don't believe I have. Okay. I'm handing you what's been marked

Exhibit 1, which is the notice of deposition of Video Professor, Inc. pursuant to Federal Rule of Civil

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A

That would be the radio station could get

a paid spot, so we default out. Q I see. So the PI marketing is kind of the

filler marketing for radio; is that it? A
Q minute.

Exactly.
Okay. Let me go back to television for a

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A Q

Um-hum. Today, where would I see -- what channels

would I see a Video Professor ad? A National cable markets predominantly. You

would see us on CNN, Headline News, MSNBC, CNBC, ESPN, the major -- well, also the minor ones, Animal Planet, History Channel, the Military Channel. Q A
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All cable? National, all cable.
Okay. So you don't advertise on any of

the national broadcast networks like NBC or CBS or ABC? A If we make an appearance on NBC or ABC or

CBS the way you are thinking of it, we would do it locally.

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Q A Q

Through a local affiliate? Yes. Not on a national basis?

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points, whatever we were offering on TV or on our Web sites. po i n t . Q All right. But regardless whether or not We would not have deviated from that price

VPI currently has its own store on eBay, are you
aware that Video Professor products are available

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from third parties offering them on eBay?
A I am aware that there are individuals who

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attempt to sell Video Professor products on eBay. I would also add that I also understand that is a violation of our terms and usage policy.
Q Your understanding is you have a policy

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when somebody buys Video Professor that they can't resell the product? A Q Correct. Does Video Professor enforce that policy

against consumers?

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A Q

Yes. Has Video Professor attempted to take down

eBay auctions on the grounds that the users are
violating these terms of usage?

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A Q

I believe we have. Has Video Professor been successful in

taking down eBay auctions on that basis? A I believe we have, yes.

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Q

And yet there's still -- people still sell

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Video Professor products on eBay? A That's correct, but we do attempt to

police that. Q If I were to buy a Video Professor

product, say, on the phone, I call in, where would I see these terms of usage that talk about the fact that I can't resell the product? Where would I learn of that? A It's two places, I believe. One, there is

an insert in the packaging, and two, there are terms and conditions when you put the CD in that you have to agree to.
Q When I actually install the software in my

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computer? A Q
A

Um-hum. Yes?
Yes. Sorry.

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Q

Are you aware of Video Professor products

available for sale, whether from Video Professor or

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anybody else, anywhere other than your 800 number, your Web site and eBay?
A To the point of Amazon, certainly, we're

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aware that they get sold there. Q And for a. significant period of time,

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Video Professor itself was an Amazon vendor, right? A Q A Q That's correct. So beginning in approximately 2003 -Correct. -- Video Professor sold Video Professor

products to Amazon for Amazon to sell on the Amazon.com Web site, correct? A Yes.

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Q

All right.

And in addition to that, are

you aware that there are third parties who sell Video Professor products on the Amazon.com Web site, parties other than Amazon? A To my knowledge, the only authorized

sellers of Video Professor products on Amazon would be those who have it new, and that would be, in the past, Amazon and then Video Professor itself.

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Q authorized.
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All right.

But I didn't ask about

Sorry.

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Q

I asked about anybody. So are you aware

that there are third parties, parties not including Amazon, that currently sell video Professor products on the Amazon.com Web site? A Q Yes. Okay. And you --

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And those are unauthorized, right. I understand that. From Video Professor's

view, those are unauthorized, and they are violating these terms of usage, right?

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A Q

Exactly. Okay. Are you aware of any other Web

sites or retail stores, brick and mortar stores for that matter, where a consumer could find Video

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Professor products, other than your 800 number, your Web site,
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eBay and Amazon?
You know, there are probably sites like a

Craigslist or something like that where you might run into that, but again, I think for our part, we

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attempt to go after those third parties and take them down. Q A Yeah. Why do you do that?

We don't like our product being resold by

anyone other than Video Professor.
Q that? A As a CD ROM product, it can be duplicated. I understand that, but why don't you like

It can be -- you know, there's piracy issues related to it, and so we -- by virtue of your having

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purchased and bought the product and using it, we don't allow you to then take that and resell it.

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offered the Video Professor product, right? A
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Not to my knowledge.
That would -- yeah. Better not, right? That would be interesting.

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Q

I guess also Video Professor has been

aware that Amazon was bidding on "video professor" as a keyword. A Q A You are aware of that? We had an agreement. What do you mean by that? The vendor manual, vendor agreement, I

believe, specifically allowed them to utilize the "video professor " keyword in order to sell Video professor product.
Q And if I understand this right, I mean,

that was Video Professor 's understanding so long as the vendor agreement remained in effect; is that

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right?
A Correct. MR. LEVY: I see that it's 12:30, and I

probably should have mentioned this earlier, but would this be a good time to take our lunch break? MR. SMITH: That's fine with me.

(The deposition recessed at 12:30 p.m., to be reconvened at 1:30 p.m.

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for a moment, is VPI seeking damages in this case from Amazon purely because of the fact that the Professor Teaches product happens to be available for sale on the Amazon Web site, just like it's available for sale at Best Buy or available for sale at any of the other stores? A It's seeking damages because Amazon would

appear to represent to consumers who type in "video professor" in a search engine that they are going to have the opportunity to buy a Video Professor product when, in fact, they are presented with a Professor

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Teaches offer.
Q A So it's linked to the keyword aspect? Correct. MR. LEVY: any other questions. MR. SMITH: Okay. Okay. That's it. I don't have

(Discussion off the record.) MR. SMITH: I would like the entire transcript, every page, marked, pursuant to the

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protective order in this case, highly confidential, attorneys' eyes only. (The deposition concluded at 5:20 p.m., March 1, 2010.)

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I,

DAVID LAUGHLIN, do hereby certify that I

have read the foregoing transcript and that the same and accompanying amendment sheets, if any, constitute a true and complete record of my testimony.

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Signature of Deponent

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( ) ) No Amendments Amendments Attached

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(

Subscribed and sworn to before me this day of

, 2010.

My commission expires Seal:

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STATE OF COLORADO) ) COUNTY OF DENVER ) ss. REPOR'TER'S CERTIFICATE

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I, Carolyn Leathers, do hereby certify that I am a Registered Merit Reporter, Certified Realtime
Reporter and Notary Public within and for the State of Colorado; that previous to the commencement of the examination, the deponent was duly sworn to testify to the truth . I further certify that this deposition was taken in shorthand by me at the time and place herein set forth, that it was thereafter reduced to typewritten form, and that the foregoing constitutes a true and correct transcript. I further certify that I am not related to,

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employed by, nor of counsel for any of the parties or
attorneys herein, nor otherwise interested in the result of the within action. In witness whereof, I have affixed my

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signature and seal this 11th day of March, 2010.
My commission expires September 18, 2013.

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CAROLYN LEATHERS

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