TimesLines, Inc v. Facebook, Inc.

Filing 112

MEMORANDUM by TimesLines, Inc in Opposition to Sealed motion, 85 Motion for Summary Judgment (Redacted Version) (Attachments: # 1 Redacted Timelines, Inc.'s Local Rule 56.1(b)(3) Response to Facebook, Inc.'s Local Rule 56.1(a)(3) Statement of Material Facts, and Timelines' Local Rule 56.1(b)(3)(C) Statement of Additional Material Facts that Require the Denial of Summary Judgment)(Van Baren, Bruce)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TIMELINES, INC.
Plaintiff,
v.
FACEBOOK, INC.
Defendant.

)
)
)
)
)
)

Civil Action No.: 11 CV 6867

)

HONORABLE JOHN W. DARRAH

)
)

Jury Trial Demanded

TIMELINES, INC.'s MEMORANDUM OF LAW IN OPPOSITION
TO FACEBOOK, INC.'s MOTION FOR SUMMARY JUDGMENT

TABLE OF CONTENTS
Page
INTRODUCTION .......................................................................................................................... I
SHORT BACKGROUND ABOUT TIMELINES ......................................................................... 3
ARGUMENT .................................................................................................................................. 5

I.

FACEBOOK USES "TIMELINE" IN A TRADEMARK AND BRAND WAY .............. 5

II.

TIMELINES' TRADEMARKS ARE NOT GENERIC ..................................................... 7
A.

Genericness Is Not Appropriate For Summary Judgment ...................................... 7

B.

Timelines' Presumption of Validity Demonstrates That Facebook's Genericness
Arguments And Evidence Are, At Best, Factual Disputes for Trial... .................... 9

C.

Facebook's Genericness Arguments Fail... ........................................................... II
I.

Facebook's Dictionary Argument Fails .................................................... II

2.

Facebook's Argument That Timelines Uses "timeline(s)" Generically
Fails ........................................................................................................... 12

3.

Facebook's Third-Party Competitors Argument Fails .............................. 13

4.

Facebook's Media Argument Fails ........................................................... 15

5.

Facebook's Survey Argument Fails .......................................................... 15

D.

Timelines' Trademarks Are Not Descriptive ........................................................ 18

E.

Facebook Does Not Make Fair Use ...................................................................... 19

CONCLUSION ............................................................................................................................. 20

TABLE OF AUTHORITIES
Page
Cases

Atlanta Allergy & Asthma Clinic, P.A. v. Allergy & Asthma ofAtlanta, LLC,
685 F.Supp. 2d 1360 (N.D. Ga. 2010) ...................................................................................... I7
Blau Plumbing, Inc. v. S.O.S. Fix-It, Inc.,
78 I F.2d 604 (7th Cir. 1986) ...................................................................................................... 9
California Cooler, Inc. v. Loretto Winery, Ltd.,
774 F.2d I45I (9th Cir. 1985) .................................................................................................... 8
Chicago Tribune Co. v. Fox News Network, LLC,
520 F. Supp. 2d 930 (N.D. HI. 2007) .......................................................................................... 7
Cmty. First Bank v. Cmty. Banks,
360 F. Supp. 2d 716 (D. Md. 2005) .......................................................................................... 18
Committee for Idaho's High Desert, Inc. v. Yost,
92 F.3d 8 I 4 (9th Cir. 1996) ........................................................................................................ 7
Competitive Edge, Inc. v. Staples, Inc.,
763 F. Supp. 2d 997 (N.D. Ill. 2010) ........................................................................................ 16
Dejlecta-Shield Corp. v. Kar-Rite Corp.,
No. 85 C 5743, 1986 WL 15091 (N.D. Ill. Dec. 24, 1986) ...................................................... IO
Door Sys., Inc. v. Pro-Line Door Sys., Inc.,
83 F.3d 169 (7th Cir. 1996) .......................................................................................... 7, 8, 9, 10
E. I. DuPont de Nemours & Co. v. Yoshida Int'l, Inc.,

393 F. Supp. 502 (E.D.N.Y. 1975) ........................................................................................... 18
Eagle Snacks, Inc. v. Nabisco Brands, Inc.,
625 F. Supp. 571 (D.N.J. 1985) .................................................................................................. 8
Echo Travel, Inc. v. Travel Associates, Inc.,
870 F.2d 1264 (7th Cir. 1989) .................................................................................................... 9
Energy Services Air Conditioning & Heating Co., Inc.,
No. 97 C 373, I 997 WL 790725 (N.D. Ill. Dec. 22, 1997) ........................................................ 7
Even Liquid Controls Corp. v. Liquid Control Corp.,
802 F.3d 934 (7th Cir. 1986) .................................................................................................... IO
Facebook, Inc. v. Teachbook.com LLC,
819 F. Supp. 2d 764 (N.D. III. 2011) .......................................................................................... 8
II

Filipino Yellow Pages, Inc. v. Asian Journal Publications, Inc.,
198 F.3d 1143 (9th Cir. 1999) .................................................................................................. 10
Gimix, Inc. v. JS & A Group, Inc.,
699 F.2d 901 (7th Cir. 1983) ...................................................................................................... 9
Hermes Int'l v. Lederer de Paris Fifih Avenue, Inc.,
219 F.3d I 04 (2d Cir. 2000) ..................................................................................................... I 0
Hickory Farms, Inc. v. Snackmasters, Inc.,
500 F. Supp. 2d 789 (N.D. Ill. 2007) ........................................................................................ 15
Igloo Products Corp. v. Brantex, Inc.,
202 F.3d 814 (5th Cir. 2000) ...................................................................................................... 8
In Re Stouffer Foods Corp.,
118 F.T.C. 746 (1994) .............................................................................................................. 17
Intel Corp. v. Advanced Micro Devices, Inc.,
756 F. Supp. 1292 (N.D. Cal. 1991) ......................................................................................... 17
Interstellar Starship Servs., Ltd. v. Epix Inc.,
184 F .3d II 07 (9th Cir. 1999) .................................................................................................. 20
Johs. De Kuyper & Zoon v. Phillips Products Co.,
No. 92 C 4996, 1993 WL 134903 (N.D. HI. Apr. 22, 1993) .................................................... 19
Kelley Blue Book v. Car-Smarts, Inc.,
802 F. Supp. 278 (C. D. Cal. 1992) ............................................................................................. 8
KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc.,
408 F.3d 596 (9th Cir. 2005) .................................................................................................... 10
Laundry Operating Co. v. Spalding Laundry & Dry Cleaning Co.,
383 S.W.2d 364 (Ky.l964) ....................................................................................................... 20
Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co.,
799 F.2d 867 (2d Cir. 1986) ..................................................................................................... 10
Louis Vuitton SA. v. Lee,
875 F.2d 584 (7th Cir. 1989) .................................................................................................... 15
McKillip Indus., Inc. v. Integrated Label Corp.,
477 F. Supp. 2d 928 (N.D. Ill. 2006) .......................................................................................... 7
Mil-Mar Shoe Co., Inc. v. Shonac Corp.,
75 F.3d 1153 (7th Cir. 1996) .................................................................................................... 15
Murphy Door Bed Co., Inc. v. Interior Sleep Sys., Inc.,
874 F .2d 95 (2d Cir. 1989) ................................................................................................... 8, 10
iii

Packman v. Chicago Tribune Co.,
267 F .3d 628 (7th Cir. 2001) ...................................................................................................... 9
Park 'N Fly, Inc. v. Dollar Park and Fly, Inc.,
718 F.2d 327 (9th Cir. 1983), rev 'don other grounds, 469 U.S. 189 (1985) ............................. 8
Park N' Fly v. Dollar Park and Fly, Inc.,
469 u.s. 189 (1985) ............................................................................................................ 10, 13
Playboy Enter., Inc. v. Chuckleberry Pub., Inc.,
687 F .2d 563 (2d Cir. 1982) ..................................................................................................... 10
Quill Natural Spring Water, Ltd. v. Quill Corp.,
91 C 8071, 1994 WL 559237 (N.D. Ill. Oct. 7, 1994) .............................................................. 16
Reno Air Racing Ass'n, Inc. v. McCord,
452 F .3d 1126 (9th Cir. 2006) .................................................................................................. 10
Retail Services, Inc. v. Freebies Publ'g,
364 F.3d 535 (4th Cir. 2004) .............................................................................................. 12, 13
Rust Env't & Infrastructure, Inc. v. Teunissen,
131 F.3d 1210(7thCir.1997) ................................................................................................... 17
San Francisco Arts & Athletics, Inc. v. United States Olympic Committee,
483 u.s. 522 (1987) .................................................................................................................... 7
Sands, Taylor & Wood Co. v. Quaker Oats Co.,
978 F.2d 947 (7th Cir. 1992) .................................................................................................... 18
Schmidt v. Quigg,
609 F. Supp. 227 (E.D. Mich. 1985) ........................................................................................... 8
Spraying Sys. Co. v. Delavan, Inc.,
975 F.2d 387 (7th Cir. 1992) .................................................................................................... 16
Te-Ta-Ma Truth Foundation-Family of Uri, Inc. v. World Church of the Creator,
297 F.3d 662 (7th Cir. 2002) .................................................................................................. 7, 9
Ty Inc. v. Sojibelly's, Inc.,
353 F.3d 528 (7th Cir. 2003) ...................................................................................................... 9
Ty, Inc v. The Jones Grp.,
98 F.Supp.2d 988 (N.D. Ill. 2000) ............................................................................................ 13
United States Jaycees v. San Francisco Junior Chamber of Commerce,
513 F.2d 1226 (9th Cir. 1975) .................................................................................................... 8
V & V Food Products, Inc. v. Cacique Cheese Co., Inc.,
683 F. Supp. 662 (N.D. Ill. 1988) ............................................................................................... 9
IV

Windsurfing Int'l, Inc. v. Fred Ostermann GmbH,
6I3 F. Supp. 933(S.D.N.Y. I985), aff'd in part, rev'd in part, 782 F.2d 995 (Fed.
Cir. I986) .................................................................................................................................. I7
Woodroast Sys., Inc. v. Restaurants Unlimited, Inc.,
793 F. Supp. 906 (D. Minn. 1992) .............................................................................................. 8
Statutes

I5 U .S.C. § I 057(b) ...................................................................................................................... I 0
Other Authorities

3 J. THOiv1AS MCCARTHY, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION§
23:124 (4th ed.I996) ................................................................................................................. 20
5 J. THOMAS MCCARTHY, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION§
32:163 (4th ed.l996) ................................................................................................................. 16
E. Deborah Jay, Genericness Surveys in Trademark Disputes: Evolution of Species,
99 TRADE!v!ARK R. 11I8 (2009) ................................................................................................ I7
Shari Seidman Diamond, Reference Guide on Survey Research, in REFERENCE
MANUAL ON SCIENTIFIC EVIDENCE 359 (Fed. Judicial Ctr. 3d ed. 20 II) ................................ 16

v

INTRODUCTION
Timelines, Inc. ("Timelines") is a small Chicago company that was in pursuit of the
American dream just like a young Mark Zuckerberg was when he started what would become
one of the world's most recognized and influential companies, Facebook. One can hardly walk
Michigan Avenue, ride the El, hop a taxi to O'Hare, or take in a Cubs game, without seeing
Facebook's trademarked logo plastered on ads for either Facebook or one of the thousands of
companies that market their products and services through Facebook. This is true in nearly every
city and town in the United States and the rest of the world. This is no overstatement. Face book
enjoys such widespread recognition because trademark law protects Facebook against infringing
uses of its many trademarks by others. While trademark law protected (and protects) Facebook
in its pursuit of success, Face book wants this Court to deny the same protections to Timelines.
Facebook has acknowledged that when it developed its own "Timeline" offering, it was
aware that the United States Patent and Trademark Office ("USPTO") had actually registered
three trademarks to Timelines for "TIMELINES," "Timelines.com" and the TIMELINES design
mark.

Under the same law that protects Facebook, these marks presumptively are valid and

enforceable and reflect that the USPTO carefully considered Timelines' applications and granted
them. Timelines proceeded to invest significant financial resources, and untold blood, sweat and
tears, working to build the little company that it had sought to protect. Those efforts, however,
were dashed to bits when, on September 22, 2011, at Facebook's fourth annual Developers'
Conference (a/kla the f8 Conference), Mr. Zuckerberg stood on stage in front ofthousands, if not
millions, of live and media-connected viewers and announced
to be prominently featured on Facebook's front page--"Timeline."

Consistent with that sentiment, soon after the f8
announcement, and for days thereafter, Facebook redirected traffic from Timelines' own
Facebook page to Facebook's "Timeline" page. The calls and emails to Timelines from people
confused about Facebook's announcement started coming in. The confusion would be funny
were it not the case that Facebook's announcement and subsequent roll out of "Timeline" to its
more than one billion worldwide users sounded the death knell for Timelines' ability to be
identified by its registered trademarks.
Facebook now seeks summary judgment, arguing that Timelines' marks are generic,
descriptive, and that Facebook's own use ofthe term is generic and non-infringing. It is beyond
ironic that these arguments come from the very company that has trademarked and enforced the
terms "like,'' "poke," and "wall," to name just a few.

Moreover, Facebook itself refers to

"Timeline'' in a brand and trademark way, which absolutely undercuts every other argument it
makes. Inexplicably, Facebook notes that the USPTO uses the term "timelines" generically on
its website. This is the same USPTO which also granted Timelines three registered trademarks
for TIMELINES, granted Time lines these marks after each of the purportedly pre-existing uses
from third parties that Facebook identifies in its brief, and which has continued to grant marks
with the term "timeline(s)" in them.
Given Facebook's history, there is no question that were it not for this legal dispute,
Facebook already would have applied for its own trademark for the term TIMELINE, and
presumably would argue that the term is suggestive and also that it has acquired secondary
meaning.

That is because Facebook has filed lawsuits or USPTO objections against many

companies for many similar terms, and this case falls within the ambit of those efforts. The
simple fact is that Timelines does not use the term "timeline(s)" generically or in a manner
2

consistent with the third-party uses Facebook has identified, sufficient to void its registered
trademarks. In contrast, Facebook's use infringes on Timelines' trademarks, and Facebook has
made

dollars using Timelines' trademarks to sell advertising through

"Timeline"- while Timelines has lost absolutely everything it invested in building its company.
Because Timelines' trademarks are presumptively valid, any effort to overcome them because of
claims that the terms are generic or descriptive, present quintessential fact questions that
established Seventh Circuit precedent requires to be reserved for trial. This case is no different.

SHORT BACKGROUND ABOUT TIMELINES
Timelines started in 2007 with less than 10 employees, most of whom have had to leave
the company because of this litigation. Time1ines offers or has offered various online services,
including the website LifeSnapz.com, the website Timelines.com, an application services
provider called Timelines SE, an application called Photogram, and an application called
Disaster of the Day. See Time lines Local Rule 56.1 (b )(3)(C) Statement of Additional Facts
("SAF'')

~~

1-2.

Its website, Timelines.com, allows users to record and share events, and

contribute descriptions, photos, videos, geographic locations and links (collectively for ease of
reference "Content") related to events. ld. at

~~

3-4.

Anyone can post Content simply by

creating an account. Id. The concept is to Jet the people of the world record the history of the
world, however they define that history. ld. LifeSnapz, Timelines SE, Photogram and Disaster
of the Day are separately described and are separate products. ld.

at~~

5-8.

Timelines has invested several million dollars into its business, and sought to protect
itself by securing federal trademarks from the USPTO. ld. at

~~

9, 19. Timelines uses its

trademarks as brand identifiers for its goods and services, including, without limitation, in
"[p ]roviding a web site that gives users the ability to create customized web pages featuring userdefined information about historical, current and upcoming events." Id. at
3

~

I 0. Timelines'

trademarks all pre-date Facebook's "Timeline." !d.

at~~

11-14. Timelines has continuously and

consistently used the TIMELINES Marks on the services described herein to promote and
endorse its business and has actively promoted Timelines.com and its goods and services using
the TIMELINES Marks. !d.

at~~

14, 16-17. Because of its efforts, approximately 3-4 million

people cumulatively have visited the Timelines.com website (which averaged 94,000 users per
month in 2011 and 2012). !d.

at~~

14-15. Timelines believed that Timelines.com could become

a repository of information from all over the world, and that it could earn revenue by selling
advertising. !d. at

~~

4, 15. In addition to having a federal registration on the TIMELINES

Marks and the strong nature of the TIMELINES Marks due to their suggestive nature, the time
and effort that Timelines has put into developing and marketing the TIMELINES Marks has
made it so that the TIMELINES Marks have secondary meaning and the public associates the
TIMELINES Marks as identifiers for Timelines' goods and services. !d.

at~~

14-15, 20.

For its efforts, Timelines has been nominated or recognized for numerous awards and
accomplishments. !d.

at~

18. Despite what Facebook might argue, Timelines was never about

having a company where a person could go to create or see a "timeline." !d. at

~

21.

A

"time1ine" is a graphical presentation of things that happen over time with a horizontal or vertical
line, with appendages coming off of the line indicating different points in time and information
about something ascribed to that point in time. !d. The company is called Timelines and has a
site called Timelines.com but does not provide timelines because there are not graphical displays
of chronological information. !d. It offers a broad array of services.
When Facebook announced "Timeline," people were confused and wrote or called
Timelines believing that it had done a deal, or otherwise had made an agreement, with Facebook,
and wanted to extend their congratulations.

!d. at

~

53.

Other individuals, believing that

Timelines was Facebook, wrote Timelines asking Timelines to change their Facebook settings.

4

!d.

at~

54. Facebook's use ofTimelines' trademarks has dried up Timelines' funding, and called

into question Timelines' business model because it is difficult for Timelines to compete when the
world's biggest social media company is "stomping" all over it.

!d. at

~

4l.

Ironically,

Facebook maintains "Community Standards" that it asks its users to respect, which include
requesting that its users respect trademarks.

!d.

~

51. By not following its own standards,

!d.

at~

58.

ARGUMENT
I.

FACEBOOK USES "TIMELINE" IN A TRADEMARK AND BRAND WAY
Transparently, Facebook placed its arguments that it does not use "Timeline" as a

trademark, and that it uses the term in good faith, at the back of its brief. But, the factual premise
to these arguments should be treated up front. Facebook does use "Timeline" in a trademark and
brand way, and this necessarily colors and gives credibility to Timelines' arguments while
shading the arguments Facebook advances.

Facebook has admitted that it was aware of

Timelines and its registered trademarks before it announced "Timeline." See SAF

~

25. Despite

!d.

this awareness,
Facebook was developing "Timeline" to replace, in part, its prior product "Wall." !d.

at~~

25,

30.
!d. at

~

25. In advance of the Facebook f8 Developers Conference where

Facebook announced "Timeline,"

5

!d.

at~

27. During this development and ahead of the conference, Facebook was

referring to its "Timeline" in a brand and trademark way. !d.

at~~

45-46.

On September 22, 2011, Facebook held the conference (the f8 Conference), and we have
provided the Court with a video of the presentation. !d.

at~~

28-29. Mr. Zuckerberg unveiled

"Time line," which he called the "heart of your Face book experience." !d.

at~

31. As noted, the

precursor to Facebook's "Timeline" was called the "Wall," a term that Facebook had
trademarked (even though "wall" is in dictionaries, the media uses it, a search of the term on
Google yields 1.65 billion responses, and third parties use it generically).

~

!d. at

30.

Throughout the presentation, the video screen behind the presenters refers to "Timeline'' with a
capital "T" and the speakers all refer to it in a brand and trademark way. !d. at

~~

31-32.

Facebook refers to "Timeline" in the same manner in its public securities filings. !d. at

~

33.

And, both Facebook's Rule 30(b)(6) deponent and its Vice President of Marketing referred to
"Timeline" as a product. !d.

at~~

34-35.

During development, Facebook did not consider its use of capital "T" "Timeline" to be
generic, because it considered the term to be similar to its other branded products, such as "like"
or "poke." !d. at

~

38. Facebook now describes its "Timeline" product as a feature which,

among other things, allows Facebook's users to review posts that they have made to Facebook,
and as a Facebook user's "collection of photos, stories and experiences that tell your story." !d.
at~~

36-37. Facebook knew that its announcement of "Timeline" would have a terrible impact

on Timelines' trademarks, because after the conference Facebook
secured headlines from media such as "Facebook Timeline Review:
This is the Greatest Thing Facebook's Ever Done." !d.

at~

39. After its rollout, Facebook made

engineering changes to its website that caused people searching for Timelines' Facebook page to,
instead, be directed to Facebook's "Timeline" page, and this lasted for at least a week. !d. at
6

~

40. Facebook only corrected the re-direction after Timelines filed this lawsuit. Id. After the
conference, Facebook continued to refer to Timeline" in a brand and trademark way Id.
44, 47-49.

at~~

43-

And, Facebook uses "Timeline" as a brand identifier in connection with other

associated brands for its Timeline product. Id.

at~

47. These are just a handful of hundreds of

examples. There is no leap in logic required to see that with Timelines out of the way, Facebook
would pursue its own trademark strategy for "Timeline." We address Facebook's fair use and
good faith legal arguments later in this brief.

II.

TIMELINES' TRADEMARKS ARE NOT GENERIC
Despite the fact that Facebook treats "Timeline" in a brand and trademark way, it argues

that the term is generic. See Facebook's Br. pp. 4-10. Each of its arguments fail.
A.

Genericness Is Not Appropriate For Summary Judgment

A genericness challenge is extremely fact-intensive and is not typically accepted on a
motion for summary judgment. See, e.g., Door Sys., Inc. v. Pro-Line Door Sys., Inc., 83 F.3d
169, 172 (7th Cir. 1996)

(warning "against yielding to the temptation" to grant summary

judgment on genericness grounds "as an abbreviated form of trial"); Energy Services Air
Conditioning & Heating Co., Inc., No. 97 C 373, 1997 WL 790725, at* 6-7 (N.D. III. Dec. 22,
1997); see also McKillip Indus., Inc. v. Integrated Label Corp., 477 F. Supp. 2d 928, 930 (N.D.
Ill. 2006); Cf Chicago Tribune Co. v. Fox News Network, LLC, 520 F. Supp. 2d 930, 933 (N.D.
Ill. 2007) ("Classification of a trademark is a factual question.").
Proving that a mark is generic is far more difficult than Facebook argues. There are
many marks, no stronger than TIMELINES, which have overcome genericness challenges. See,
e.g., San Francisco Arts & Athletics, Inc. v. United States Olympic Committee, 483 U.S. 522,
532-35 (1987) (finding the mark "Olympic" to be protectable); Te-Ta-Ma Truth FoundationFamily of Uri, Inc. v. World Church of the Creator, 297 F.3d 662 (7th Cir. 2002) ("Church of the

7

Creator" not generic); Committee for Idaho's High Desert, Inc. v. Yost, 92 F.3d 814 (9th Cir.
1996) ("Committee for Idaho's High Desert" not generic); California Cooler, Inc. v. Loretto

Winery, Ltd., 774 F.2d 1451 (9th Cir. 1985) ("California Cooler" not generic); Park 'N Fly, Inc.
v. Dollar Park and Fly, Inc., 718 F.2d 327 (9th Cir. 1983) ("Park 'N Fly" not generic), rev 'don
other grounds, 469 U.S. 189 (1985); United States Jaycees v. San Francisco Junior Chamber of
Commerce, 513 F.2d 1226 (9th Cir. 1975) (per curiam) ("Junior Chamber of Commerce" not
generic); Kelley Blue Book v. Car-Smarts, Inc., 802 F. Supp. 278 (C.D. Cal. 1992) (term "blue
book" for valuation of cars was not generic); Woodrow;·t Sys., Inc. v. Restaurants Unlimited, Inc.,
793 F. Supp. 906 (D. Minn. 1992) (granting preliminary injunction against defendant's use of
"wood roasted" to describe food cooked over a wood fire); Eagle Snacks, Inc. v. Nabisco

Brands·, Inc., 625 F. Supp. 571, 581 (D.N.J. 1985) (marks "honey roast" and "honey roasted" are
not generic); Schmidt v. Quigg, 609 F. Supp. 227, 229-30 (E.D. Mich. 1985) ("honey baked
ham" was not generic). Even Face book has previously agreed with the argument we make here.

See Facebook, Inc. v. Teachbook.com LLC, 819 F. Supp. 2d 764,778 (N.D. Ill. 2011) ("even if
we were to focus exclusively on the suffix-BOOK in Facebook's and Teachbook's marks,
Facebook has still made sufficient allegations to preclude a finding of genericness at this point").
Facebook should know this because many ofthe cases it relies upon were not summary judgment
motions, but rather cases with full trials. See, e.g., Igloo Products Corp. v. Brantex, Inc., 202
F.3d 814, 816 (5th Cir. 2000) (involving an appeal from a jury verdict on the issue of whether
the mark is descriptive); Murphy Door Bed Co., Inc. v. Interior Sleep Sys., Inc., 874 F.2d 95, 97
(2d Cir. 1989) (finding genericness only after a bench trial on that issue).
Other times, Facebook cites and relies on cases in which the Seventh Circuit did all it
could to avoid affirming a grant of summary judgment on the issue of genericness. For instance,
in Door Sys. v. Pro-Line Door Sys, the Circuit Court explained that "before [summary
8

judgment] can be properly granted ... the court must have a very high degree of confidence that
any disagreement over facts is spurious." 83 F.3d 169, 173 (7th Cir. 1996). The court then
bypassed the issue of genericness altogether and held that plaintiff's claim failed because it could
not demonstrate a likelihood of confusion. Id; See also Packman v. Chicago Tribune Co., 267
F.3d 628, 639 (7th Cir. 2001) (avoiding genericness and affirming on the basis ofthe defendant's
fair use of the mark). Based on the case law, this is simply not an issue that should be decided at
the summary judgment stage. See Ty Inc. v. Sofibelly's, Inc., 353 F.3d 528, 531 (7th Cir. 2003).
B.

Timelines' Presumption of Validity Demonstrates That Facebook's Genericness
Arguments And Evidence Are, At Best, Factual Disputes for Trial

A mark can only be considered generic when the good or service being claimed is
literally the definition of the word mark. See, e.g., TE-TA-MA Truth Found--Family of URI, Inc.

v. World Church of Creator, 297 F.3d 662, 666-67 (7th Cir. 2002). This presumption does not
"evaporate" as easily as Facebook claims. Facebook suggests that as long as it presents a scant
of evidence that suggests genericness, the validity of the mark goes out the window, requiring a
plaintiff to amass a mountain of evidence to get the mark back. That is not the law. See V & V

Food Products, Inc. v. Cacique Cheese Co., Inc., 683 F. Supp. 662, 669 (N.D. Ill. 1988) (a
federally registered trademark is prima facie evidence of the registrant's right to use it, and this
includes the specific presumption that the trademark is not generic) (quotations and citations
omitted).

It is obvious that Facebook does not understand how the presumption of validity

functions, which is probably why it inappropriately relies on several cases that do not even
involve a federally registered trademark or a presumption of validity. See, e.g., Echo Travel, Inc.

v. Travel Associates, Inc., 870 F.2d 1264, 1265 (7th Cir. 1989) (unfair competition case that did
not involve a registered trademark); Blau Plumbing, Inc. v. S.O.S. Fix-It, Inc., 781 F.2d 604, 606
(7th Cir. 1986) (trade dress case that did not involve a registered trademark); Gimix, Inc. v. JS &

A Group, Inc., 699 F.2d 901, 903 (7th Cir. 1983) (plaintiff's mark, "Auto Page" was not a
9

registered trademark). Thus, when there is presumption of validity and the defendant presents
evidence of genericness the "presumption perform[s] its function ... thus creating a conflict in
evidence" on the issue of genericness. See Door Sys., 83 F.3d at 173.
In granting the TIMELINES trademark registrations, the USPTO necessarily found that
the marks were both not generic and, either not descriptive (i.e., at least suggestive) or had
established secondary meaning. See Park N' Fly v. Dollar Park and Fly, Inc., 469 U.S. 189, 200
( 1985) ("a merely descriptive mark cannot be registered [in the first place] unless the
Commissioner finds that it has secondary meaning") (citations omitted). Courts throughout the
country have noted the strong presumption ofvalidity in registered marks and the heavy burden a
defendant has to prove genericness. "The decision of the PTO ... is to be accorded great
weight." Murphy Door Bed v. Interior Sleep Sys., 874 F.2d 95, I 0 I (2d Cir. 1989).
Consequently, "registered trademarks are presumed to be distinctive and should be
afforded the utmost protection." Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d
867, 871 (2d Cir. 1986); see also KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 408
F.3d 596, 604-06 (9th Cir. 2005); Reno Air Racing Ass'n, Inc. v. McCord, 452 F.3d 1126, 1135
(9th Cir. 2006); Playboy Enter., Inc. v. Chuckleberry Pub., Inc., 687 F.2d 563, 567 (2d Cir.
1982).

"In cases involving properly registered marks, a presumption of validity places the

burden of proving genericness upon the defendant." Filipino Yellow Pages, Inc. v. Asian Journal

Publications, Inc., 198 F.3d 1143, 1146 (9th Cir. 1999) (citing 15 U.S.C. § 1057(b)); see also
Hermes Int 'I v. Lederer de Paris Fifth Avenue, Inc., 219 F .3d I 04, 110 (2d Cir. 2000); DejlectaShield Corp. v. Kar-Rite Corp., No. 85 C 5743, 1986 WL 15091, at *2 (N.D. Ill. Dec. 24, 1986). 1

1

Even Liquid Controls Corp. v. Liquid Control Corp., 802 F.3d 934 (71h Cir. 1986), cited by the Jury Instruction
book Facebook cites does not go as far as Facebook wishes. It does state (p. 937) that enough proof can overcome
the presumption of validity, but "the burden is on the defendant not only to overcome whatever presumption of
nongenericness exists, but also to show that there is no genuine issue of material fact as to genericness."

10

C.

Facebook's Genericness Arguments Fail

1.

Facebook's Dictionary Argument Fails

Facebook argues that because timeline is defined in a dictionary, this is evidence that
Timelines' trademarks are generic.

Facebook forgets that its very name comes from the

"generic" name that was given to certain college picture books known as "face books." See SAF
~55.

Furthermore, Timelines does not describe its goods and services as permitting the creation

of a "timeline" or as concerning "timelines." !d.

at~

21. Moreover, Facebook's own trademark

history demonstrates that it seeks trademark protection for terms that appear in dictionaries,
including fourteen trademark applications for the term "LIKE" alone, almost all of which
concern Facebook's "Like" button, which its users click on when they ...... like something.

!d. at

~

57. USPTO records also reveal Facebook applications and registrations for the terms

"POKE" and "WALL." !d. Facebook's official description of its (trademarked) WALL function
is ''Your Wall is the space on your profile where you and friends can post and share." Other
marks Facebook has applied for include "FACEBOOK POKE," "LIKE," "LIKE & design,"
"FB," "F8," "F ACEBOOK PAGES," "F ACEBOOK ADS," "F ACEBOOK INSIGHTS,"
"F ACEPILE," "FACE," "REACH GENERA TOR," "GRAPH SEARCH," "SOCIAL ADS," and
"SOCIALADS." !d. at

~

57. And, Facebook aggressively litigates its own trademarks that

appear to be generic. When other entities have attempted to register or use any term close to
Facebook's registrations, such as "WALL" or even terms using "BOOK," Facebook has attacked
those entities (including one that sought to trademark "F*") in courts and before the Trademark
Trial and Appeal Board ("TTAB"). !d.

at~

56. It is hard to distinguish what Facebook itselfhas

claimed as valid and enforceable trademarks (e.g., LIKE, POKE, and WALL) and what it claims
is generic (TIMELINE). Clearly, Facebook would vigorously fight any attempt to cancel any of
its marks on dictionary definitions. Moreover, the dictionary cannot help Facebook where the

11

goods and services offered under the TIMELINES Marks do not actually meet the dictionary
definition of the word "timelines." As described below, they do not.

2.

Facebook's Argument That Timelines Uses "timeline(s)" Generically
Fails

Facebook's second argument is that Timelines uses the term "timeline(s)" generically.

See Facebook's Br. at pp. 6-7. For this argument, Facebook refers back to paragraphs 8-10, 1619, and 21 of its Local Rule 56.1 Statement of Facts. However, Facebook fails to properly
authenticate the exhibits (or provide support for the factual allegations) in Paragraphs 8-10, 1719 and 21.

See Timelines' Local Rule 56.1 responses to each of those paragraphs (citing

authority on the objections made). This leaves Facebook with just the allegations in Paragraph
16. But, even taking into account the other cited paragraphs, all that the proffered evidence
reflects is that in a few instances, Timelines had generic references to "timeline(s)" on certain
web pages or services other than the timelines.com website.
Even if those references are taken in the best light for Facebook, a single or handful of
generic uses does not make a valid trademark generic. Otherwise, extremely famous marks like
GOOGLE and, yes, Facebook, would have lost protection long ago. As Timelines' witnesses
have explained, the TIMELINES website is not about generic "timelines," and the term was used
in the way Facebook describes in a few isolated instances to increase web traffic. SAF at
22.

~~

21-

This is not evidence that Timelines engages in any extensive and long-term use of

TIMELINES in a generic manner; nor has Facebook produced any evidence to the contrary.
Timelines' sporadic and incidental use of its mark in a generic manner is of a far different
character than the widespread and pandemic generic use in the case Facebook cites, Retail

Services, Inc. v. Freebies Publ'g, 364 F.3d 535, 545 (4th Cir. 2004). There, the trademark holder
used the term "freebie" extensively throughout its website to indicate something that a consumer
is usually charged for but receives for free. !d. On top of that, the trademark owner admitted
12

that its use of the term "freebie" was consistent with the commonly understood meaning of the
word. !d.

Facebook is wrong to assert that trademark law is so unforgiving that the fleeting

reference to the generic use of a mark renders it forever generic. 2

3.

Facebook's Third-Party Competitors Argument Fails

Facebook's next argument is that third-parties use the term "timeline(s)" generically, and,
so, the term is generic. See Facebook Br. pp. 7-9. To make this argument, Facebook refers back
to paragraphs 13, 15,23-27,29, and 35-37 ofits Local Rule 56.1 Statement.
Paragraph 13 is a reference to a search run on Google, which is not authenticated and
irrelevant in any event because a search on Google for "wall" yields four times as many hits.
Paragraph 15 is the reference to the USPTO's use of"timeline(s)" already discussed.
Paragraphs 23-25, 27, 29, and 35-37 turn upon unauthenticated web pages, or affidavits
from undisclosed witnesses, and should therefore be disregarded. See Timelines' Local Rule
56.1 Response to each of those paragraphs.
Regardless, Facebook's supposed third-party evidence actually cuts against its argument.
Facebook lists five entities and their supposed historical generic use dates: Timelineindex.com
since 2003, Famento since 2007, Dipity since 2008, TimelineSoftware.com since 2002, and
Twitter since 2006. See Facebook Br. pp. 7-8.

However, all of Timelines' trademark

registrations are from 2009 and after. In fact, Facebook specifically notes that its third-party
evidence "predate[s] Plaintiffs first use of 'timelines."' !d. at 8. What Facebook is therefore
admitting is that on three separate occasions, the USPTO was fully aware of wide-ranging uses
of the term "timelines" in the Internet industry, yet specifically found that Timelines was not
using TIMELINES in a generic (or descriptive) fashion. See Park N' Fly, 469 U.S. at 200.
Furthermore, a search of the USPTO database shows that in the last four years-since 2009

2

Ty, Inc v. The Jones Grp. involved an unregistered mark, and was a preliminary injunction proceeding. Therefore,
it does not apply. 98 F.Supp.2d 988,998 (N.D.lll. 2000).

13

when it first granted one ofTimelines' trademark applications for TIMELINES-the USPTO has
granted multiple trademark registrations on the Principal Register for marks incorporating the
term "timeline" or "timelines," including, among others, "THE TIMELINE OF YOUR LIFE."
See SAF

at

~

65 (listing classes and services).

The USPTO database also shows various

applications using the term "timeline" or "timelines" that the Office has already reviewed and
found acceptable and published for opposition, but registration just has not issued yet, including
"TIMELINE OF EYE DISEASE" and "DYNAMIC TIMELINE." !d.

at~

66.

Moreover, these third parties' uses of"timeline(s)" are not the same as those ofTimelines
and are not relevant to any genericness analysis because their uses are so different than those of
Timelines and Facebook that they are rendered almost meaningless.

By way of example, a

produce company may use "apple" generically while "Apple" is a perfectly valid and strong
trademark for electronics. The produce company's use of the term would not be relevant in a
case regarding the electronics company. Importantly, unlike these third-parties, Facebook and
Timelines use TIMELINE(S) as the name of an actual product, allow customers to use the
TIMELINE(S) product in a collaborative way to create and share many types of information,
adding and editing non-linear details in a system that is never closed and is always open to
interpretation, expansion, and commentary, to have an interactive experience, sharing events,
feelings, and ideas with other members of one's community.
Timelines' products are free (SAF

~~

And, both Facebook and

3, 50), web-based, and neither truly attempts to portray a

linear representation of chronological events. On the other hand, the third-parties presented in
Facebook's motion use the term "timelines" in a different, more literal way. For the most part,
their software or web-product is a paid product used to create graphical presentations in a onetime, static, closed system incapable of being edited or commented upon. See SAF

~~

59-64.

Additionally, courts recognize that it is impossible for trademark holders to correct every

14

trademark infringement of others or even stop all generic uses. See, e.g., Louis Vuitton S.A. v.

Lee, 875 F.2d 584, 588 (7th Cir. 1989). Finally, this heavily disputed evidence from a mere five
companies is a far cry from the third-party evidence in Facebook's cases. In Mil-Mar Shoe Co.,

Inc. v. Shonac Corp., 75 F.3d I I 53, I 159 (7th Cir. I 996), the defendant put forth evidence of
over 8,000 retail stores that used the term "warehouse" generically. Likewise, the defendant in

Hickory Farms, Inc. v. Snackmasters, Inc., identified over I 00 companies that used the terms at
issue on their products. 500 F. Supp. 2d 789, 794 (N.D. Ill. 2007).

4.

Facebook's Media Argument Fails

Facebook's next argument is that the media generically uses the term "timeline(s)." Its
evidence for this is a search run on Google that returned four times fewer hits than a search on
Google for "wall." Its other evidence is a collection of news articles. In light of the USPTO' s
actions and timing on marks regarding the term "timeline(s)" noted above, at best this media
argument demonstrates a very weak factual dispute for Facebook, for trial. Moreover, it bears
noting that the media refer to Facebook's "Timeline" in a brand and trademark way. SAF ,-r 52.
Moreover, when the media do use the term, they use it to describe a horizontal or vertical axis of
dates, which is not how Timelines' uses the term.

No doubt the media also use "apple"

generically, but that does not make the term generic for Apple Computer.

5.

Facebook's Survey Argument Fails

Facebook's last argument is that its genericness survey demonstrates that the term
"timeline(s)" is generic. See Facebook's Br. at pp. I 0-11 (noting survey from Dr. Jay). All of
the arguments addressed above, including Facebook's own trademark and brand use and the
USPTO's actions, demonstrate that this survey, at best, presents a factual dispute. Furthermore,
Facebook's survey is so flawed, and contains so many biases, that its results simply are not
valid. See Timelines' Response to Facebook's SUF ,-r,-r 38-39 (noting Timelines' experts'

15

critique of Facebook's survey). The most prominent problem with Dr. Jay's survey is that by
being conducted over the telephone, it completely failed to replicate market conditions or reallife- consumer experience.

!d.

This violated a fundamental survey requirement. See

Competitive Edge, Inc. v. Staples, Inc., 763 F. Supp. 2d 997, 1010 (N.D. Ill. 2010) ("[A] survey .

. . must attempt to replicate the thought processes of consumers encountering the disputed mark
or marks as they would in the marketplace."); see also, 5 J. THOMAS McCARTHY, McCARTHY ON
TRADEMARKS AND UNFAIR COMPETITION§ 32:163 at 32-237 (4th ed.1999). Because Dr. Jay's
survey was conducted over the phone, survey respondents did not encounter the mark at issue as
they would under real market conditions, which in this case is purely visual and consists of
consumers viewing the TIMELINES mark online and in the context of a webpage. Resp. to
Facebook's SUF ~~ 38-39. The result then was "auditory bias."
This manner of exposure is a complete departure from how a consumer would encounter
the TIMELINES mark and "introduce[ed] an unknown bias." !d. The Seventh Circuit and this
Court have been critical of phone surveys for this very reason. See, e.g., Spraying Sys. Co. v.
Delavan, Inc., 975 F.2d 387, 396 (7th Cir. 1992) (holding that a phone survey "failed to replicate

market conditions and was of minimal probative value for purposes of the trade dress claim.");
Quill Natural Spring Water, Ltd. v. Quill Corp., 91 C 8071, 1994 WL 559237 (N.D. Ill. Oct. 7,

1994) ("[T]elephone surveys may not accurately reflect the market conditions in which
consumers would confront the parties' marks."). Likewise, research marketing authority is clear
that phone surveys "can be used only when it is unnecessary to show the respondent any visual
materials." Shari Seidman Diamond, Reference Guide on Survey Research, in REFERENCE
MANUAL ON SCIENTIFIC EVIDENCE 359, 399-400 (Fed. Judicial Ctr. 3d ed. 2011) (emphasis
added).

Dr. Jay knows this and, in a publication, has stated that "visual stimuli may be

appropriate in a genericness survey." See E. Deborah Jay, Genericness Surveys in Trademark
16

Disputes: Evolution of Species, 99 TRADEMARK R. 1118, 1158 (2009)).

Where, as here, a

consumer would only encounter the mark by reading it on a webpage, visual stimuli was
necessary to replicate the real life exposure conditions. Resp. to Facebook's SUF

~~

38-39.

Another problem with Dr. Jay's survey is that it did not properly randomize the order of
the questions. !d. Instead, the questions concerning the term "Timelines" were always asked in
the same position-last- while the 6 other masking names were randomly rotated for each
respondent. !d. There is no justification for why the noncritical names were randomized and
"Timelines" was not. !d. As a result, Dr. Jay's survey failed to control for "order bias." Id; see

also Rust Env't & Infrastructure, Inc. v. Teunissen, 131 F.3d 1210, 1218 (7th Cir.1997)
(affirming district court's rejection of a survey that failed to incorporate random rotation of
questionnaire options); In Re Stouffer Foods Corp., 118 F.T.C. 746, 806 (1994) (stating that
order of survey questions should be rotated to avoid "order bias."); Atlanta Allergy & Asthma

Clinic, P.A. v. Allergy & Asthma of Atlanta, LLC, 685 F.Supp. 2d 1360, 1372 (N.D. Ga. 2010).
The survey's "order bias" was potentially amplified by use of the phone survey and questions
regarding the term "Timelines" were always asked last. See Diamond, supra, at 359, 396 (noting
that in oral telephone surveys "respondents are more likely to choose the last choice offered").
Add to the mix the survey's other biases, which include bundling together certain questions and
failing to take into account the "Product Life Cycle," and we are left with a survey riddled with
flaws and biases. Resp. to Facebook's SUF

~~

38-39.

If Dr. Jay's survey must come in, its only place is before a jury. See, e.g., Windsurfing

Int'l, Inc. v. Fred Ostermann GmbH, 613 F. Supp. 933, 936 (S.D.N.Y. 1985), aff'd in part, rev'd
in part, 782 F.2d 995 (Fed. Cir. 1986)) (survey evidence of genericness presented during bench
trial); Intel Corp. v. Advanced Micro Devices, Inc., 756 F. Supp. 1292 (N.D. Cal. 1991) (survey
evidence was presented during a sixteen day trial). Even in the Teflon case, which Facebook
17

relies on to justify Jay's methodology, the survey evidence was presented at trial. See E. I.

DuPont de Nemours & Co. v. Yoshida lnt'l, Inc., 393 F. Supp. 502, 505 (E.D.N.Y. 1975).

***
In sum, just because a mark is made up of a word that has a real meaning does not mean
that it is being used generically. The USPTO did not believe that TIMELINES was being used
generically when it issued Timelines' three registrations.

The USPTO did not believe that

Facebook's evidence of third-party uses of the word "timelines," all available to the USPTO at
the time, was cause to find TIMELINES generic and reject the applications. And, although it has
rejected a single Timelines' application for the principal register, the USPTO clearly still
believes that the term "timelines" can be appropriate as a valid and enforceable trademark,
neither generic nor even descriptive. 3
D.

Timelines' Trademarks Are Not Descriptive

Facebook's next argument is that the TIMELINES marks are merely descriptive.
Facebook's Br. at pp. 11-13. Yet this argument fails, in part, for reasons already discussed. First,
the USPTO found that the marks are not descriptive, or if descriptive had established secondary
meaning. Second, the TIMELINES marks do not describe anything. Facebook mischaracterizes
Timelines' services as allowing users to create time lines and chronologies of events so that it can
argue that the TIMELINES marks are descriptive of those services. Again, this is not what
Timelines is or does. See SAF at

~

21. Timelines' services have a historical and time-like

flavor to them, but it does not offer timelines in the sense that Facebook argues. Rather, the
TIMELINES marks are suggestive because they stand "for an idea which requires some
operation of the imagination to connect it with the goods .... " Sands, Taylor & Wood Co. v.

Quaker Oats Co., 978 F.2d 947, 952 (7th Cir. 1992); see also Cmty. First Bank v. Cmty. Banks,
360 F. Supp. 2d 716, 723 (D. Md. 2005) ("Coppertone®, Orange Crush®, and Playboy® are
3

The one rejected Timelines application was not rejected on grounds that it was generic for the services applied for.

18

good examples of suggestive marks because they conjure images of the associated products
without directly describing the products.") While Facebook's imagination may seemingly be
limited, a juror's may not be -- descriptiveness is a question of fact. See Johs. De Kuyper &
Zoon v. Phillips Products Co., No. 92 C 4996, 1993 WL 134903 (N.D. Ill. Apr. 22, 1993).

E.

Facebook Does Not Make Fair Use

Facebook's last, miniscule argument is that it makes fair use of the term "timeline," and
uses the term in good faith. See Facebook's Br. at pp. 13-15. In response, Facebook's own use
of its "Timeline" in a brand and trademark way demonstrates that these arguments are not true.
Moreover, Facebook's arguments only demonstrate, at best, fact issues for trial. The USPTO
was correct when it granted Timelines three registrations for the TIMELINES Marks. While the
term "timelines" may have an actual meaning in certain contexts, it is not used generically by
Timelines. As alluded to above, Timelines.com and the products and services offered under the
TIME LINES Marks do not attempt to simply allow the creation of some graphical "time line" of
events.

TIMELINES allows users of the Timelines.com website to maintain a record of

important events in their lives and to share these important events with other people - there is
and never has been a "create a timeline" button on Timelines.com. Hand Dep. at p. 44.
Facebook, which offers extremely similar, if not identical, goods and services under its
own "Timeline" mark, just as clearly uses "Timeline" as a brand identifier and not as a generic
term.

Given the way that "Timeline" has been positioned as a brand identifier from the

beginning, was intended to and has replaced the registered trademarked WALL brand identifier,
and further knowing that Facebook has registered or applied for multiple trademarks for its
similar brand identifiers LIKE, POKE, FACE, FACEBOOK, FB, FBOOK - and has
aggressively challenged anyone who attempted to use any similar terms, including attacking
various entities for their online uses of "BOOK"-it is preposterous for Facebook to claim that
19

fair use or good faith warrants summary judgment.

"Absence of malice is no defense to

trademark infringement: In 'Through the Looking Glass' we are told the walrus shed copious
tears as he devoured the innocent oysters who had accepted his invitation to stroll along the
beach. He meant them no harm, of course. He merely wished to eat them."

3 J. THOMAS

McCARTHY, MCCARTHY ON TRADEI'v1ARKS AND UNFAIR COMPETITION§ 23:124 (4th ed.1997)
(quoting Laundry Operating Co. v. Spalding Laundry & Dry Cleaning Co., 383 S.W.2d 364, 366
(Ky.1964))." See also Interstellar Stars hip Servs., Ltd. v. Epix Inc., 184 F.3d 1107, 1111 (9th
Cir. 1999) ("Adopting a designation with knowledge of its trademark status permits a
presumption of intent to deceive."). Furthermore, while Facebook has not filed a trademark
application for "Time line," that is only because it knew of Timelines' registrations and was sued
by Timelines before it got the chance. Facebook's use of"Timeline" is no more a mere a simple
"feature of a user's profile" and is far less "inconspicuous" (Facebook Mem. at 14), than
were/are WALL, POKE, and LIKE, all Facebook registered trademarks.

That evidence

discounts the argument Facebook makes in a single paragraph without support at the end of its
brief:

that Facebook uses "Timeline" in good faith because, rather than trying to protect

offerings on user profiles as trademarks, it just "names things what they are." That is clearly not
borne out by the evidence.
CONCLUSION

Wherefore, for all of the foregoing reasons, Timelines respectfully submits that the Court
should deny Facebook's motion for summary judgment.
Dated: February 14, 2013
TIMELINES, INC.,
P faint iff!Counter-Defendant
By: /s/ Douglas A. Albritton
James T. Hultquist (SBN 6204320)
Douglas A. Albritton (SBN 6228734)
Michael L. DeMarino (SBN 6298337)
Bruce R. Van Baren (SBN 6310375)
REED SMITH LLP

Respectfully submitted,

10 South Wacker Drive
Chicago, IL 60606-7507
312-207-1000
Counsel for TIME LINES, INC.
20

CERTIFICATE OF SERVICE
The undersigned, one of the attorneys of record in this case, hereby certifies that he
caused true and correct copies of Timelines, Inc.'s Memorandum of Law in Opposition to
Facebook's Motion for Summary Judgment, Local Rule 56.1 Responsive Statement, and
Exhibits, to be filed under seal with the Court via the CM/ECF System, and also served copies of
these documents upon Counsel of Record for Facebook via e-mail on February 14,2013.
Is/Douglas A. Albritton
An attorney

21