TimesLines, Inc v. Facebook, Inc.

Filing 120

MEMORANDUM by Facebook, Inc. in support of motion in limine 119 to Exclude Dr. Eli Seggev's Survey and Related Expert Report and Testimony (Attachments: # 1 Declaration of Brendan Hughes, # 2 Exhibit A, # 3 Exhibit B)(Willsey, Peter)

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Exhibit B Page 1 1 2 3 4 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION ---------------------------------------X TIMELINES, INC., PLAINTIFF, 5 -against6 FACEBOOK, INC., 7 8 DEFENDANT. ---------------------------------------X 9 10 11 12 13 DEPOSITION OF DR. ELI SEGGEV New York, New York Thursday, December 6, 2012 14 15 16 17 18 19 20 21 22 Reported by: Rebecca Schaumloffel, RPR, CLR Job 56153 23 24 25 TSG Reporting - Worldwide 877-702-9580 Page 73 1 2 3 E. SEGGEV Q. That was in an effort to identify an appropriate universe -- 4 A. Likelihood of -- I'm sorry. 5 Q. So when you conduct these Yes. 6 surveys, you believe it is important to 7 develop the appropriate universe of 8 participants by screening people who are 9 unlikely to be interested in relevant goods 10 or services of the case? 11 A. That's rule number one. 12 Q. In looking at this entire list of 13 cases, do you have an idea -- let me ask you 14 a question. 15 one of these cases? 16 A. Did you conduct a survey in each Yes. Let me go back for a 17 second, because there may be -- yes. 18 answer is yes. 19 20 21 22 23 24 25 Q. The And approximately how many of those surveys were conducted online? A. Probably, I would say 40% of them. Q. And what rough percentage of those surveys were conducted in person? A. Whenever the occasion called for TSG Reporting - Worldwide 877-702-9580 Page 113 1 E. SEGGEV 2 research, which if you look at the objective, 3 as I defined it, it was to evaluate the 4 likelihood of confusion between the name of 5 this website and a word that's used in 6 another website, unnamed to the respondents. 7 So you have got to consider the 8 respondent looking -- what information you 9 provided them, and that's what I did. 10 11 12 Q. Was this survey designed to test for forward confusion or reverse confusion? A. The simple answer is forward 13 confusion. 14 because the -- it seems to me that the -- the 15 distinction between forward and reverse is 16 based on what might be called need-based 17 consumer scenario. 18 And the reason I qualify it is In our experience in likelihood 19 of confusion, yours, mine, up to this recent 20 time, we were confronted with situations in 21 which people are in a pre-purchase state. 22 They search, they evaluate, they decide what 23 brands to enter in their consideration set, 24 as we refer to it. 25 purchase, and it is at that point that we Then they make a TSG Reporting - Worldwide 877-702-9580 Page 124 1 2 E. SEGGEV name is Timelines, web -- 3 Q. But did you -- 4 A. I'm sorry. 5 6 After they have been exposed to the website Timelines. Q. But did you consider asking the 7 question in the following terms: 8 the following companies, if any, do you most 9 associate with the website you just reviewed? 10 A. Which of No, I did not, because the 11 critical elements in this environment, in 12 this suit, are the names themselves rather 13 than the websites, the sites. 14 Q. All right. But an association 15 between two words doesn't necessarily lead to 16 an association between the two entities who 17 are using those words. 18 MR. ALBRITTON: Is that a 19 question? 20 Q. Wouldn't you agree? 21 A. Well, the purpose of the study 22 was if -- to find out what are the entities 23 that consumers associate with this word, 24 "timelines." 25 Q. But have you reviewed Dr. Itamar TSG Reporting - Worldwide 877-702-9580 Page 131 1 E. SEGGEV 2 connection and affiliation? 3 A. You were talking about 4 association and affiliation. 5 connection and affiliation? 6 Q. 7 affiliation. 8 A. You mean 9 Yeah, I'm sorry, association and There is no -- in my mind, but again, it is an empirical question, it would 10 have been quite similar. 11 that I prefer association is because it is 12 not an affiliation of one website with 13 another website, but the focus was on the 14 names only. 15 me to represent that reality as well as 16 association. 17 means there are entities that are connected, 18 are affiliated in some way. 19 The only reason So affiliation did not sound to Because affiliation, to me, it And I wanted to focus, and this 20 research focuses, on the words, on the names, 21 rather than the companies that stand behind 22 it. 23 So that was my rationale. Q. So is it fair to say that you 24 believe the results of your survey show a 25 connection between the word "Timelines" and TSG Reporting - Worldwide 877-702-9580 Page 132 1 E. SEGGEV 2 Facebook, but not a connection between the 3 Timelines website and the Facebook website or 4 the source of the Timelines website and 5 Facebook; you were focused on the words? 6 A. That is not a correct 7 representation of yours, because you used the 8 term "connection," and I didn't do anything 9 with connection here. 10 11 Q. I am sorry, let me rephrase that question using the word "association." 12 You showed -- you believe that 13 the results of your survey showed an 14 association between the word "Timelines" and 15 Facebook and not an association between the 16 Timelines.com website and the Facebook 17 website or the source of the Timelines 18 website and Facebook. 19 association between the word and Facebook? 20 A. You were focused on As the question reads, which of 21 the following, and so on, do you associate 22 this name with, which is Timelines. 23 Q. So the answer is yes? 24 A. Yes. 25 Q. If you look at page seven, TSG Reporting - Worldwide 877-702-9580 Page 137 1 2 3 E. SEGGEV Depends on the question. Q. Are you aware of a single case in 4 which a survey that asks respondents only one 5 question about what or who they associate the 6 presented mark with has been accepted by a 7 court? 8 9 10 A. I don't know what you mean by that, only one question. Q. Well, a survey similar to the one 11 that you conducted here, where, you know, the 12 question, the key question, I think you would 13 agree, is, "Which of the following companies, 14 if any, do you most associate this name 15 with?" 16 Are you aware of any case where a 17 survey that rested significantly on a single 18 question as to an association between a word 19 and other companies was relied upon to find 20 trademark infringement? 21 A. If you flip that page, you will 22 see there is a second question that belongs 23 to the same sequence, I would argue, that 24 asks for the reasons for so doing. 25 in line with likelihood of confusion TSG Reporting - Worldwide This is 877-702-9580 Page 138 1 E. SEGGEV 2 procedures that -- whether it is Eveready or 3 Squirt, that ask for the reasons, and so does 4 this survey. 5 So it is really two questions, 6 first of all, and those two questions are -- 7 in my view, form a complete set for the 8 purposes of this study. 9 Q. But are there any cases in which 10 an Eveready or Squirt survey relied upon a 11 central question that focused on association 12 between a word and other companies? 13 A. Oh, that's -- sorry, that's a 14 different question. 15 time that I encountered it, and this is -- 16 this has been my solution to it. 17 Q. 18 19 No. This is the first I apologize, I -MR. ALBRITTON: You need a copy of something? 20 MR. WILLSEY: No. I was looking 21 for a different exhibit, but I will 22 find that on a break and circle back 23 to the issue. 24 Q. 25 Did you consider doing -- using any other approaches to this survey? TSG Reporting - Worldwide 877-702-9580 When Page 192 1 E. SEGGEV 2 incorrectly determined, that could invalidate 3 the results of the survey? 4 A. As a general statement? 5 Q. As a general statement, yes. 6 A. Absolutely, yes. 7 8 9 Chapter one, paragraph one of any textbook. Q. And I may know the answer to this, but -- for the reasons that you just 10 stated, but to clarify, you did not make any 11 effort to obtain any information from 12 Timelines regarding their existing user base, 13 the characteristics of their existing 14 subscribers, did you? 15 A. I did not inquire about that. 16 Q. And did you inquire from 17 Timelines or any representative of Timelines 18 as to the intended future audience of 19 Timelines? 20 A. No, sir. 21 Q. You are aware that certain 22 treatises such as McCarthy state that in 23 cases of forward confusion, you should focus 24 the universe on the universe associated with 25 the defendant infringer, right? TSG Reporting - Worldwide 877-702-9580

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