TimesLines, Inc v. Facebook, Inc.

Filing 124

MEMORANDUM by TimesLines, Inc in support of motion in limine 123 No. 1 (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Van Baren, Bruce)

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
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TIMELINES, INC.,
PLAINTIFF,

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-against6

FACEBOOK, INC.,
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DEFENDANT.
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DEPOSITION OF DR. ELI SEGGEV
New York, New York
Thursday, December 6, 2012

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Reported by:
Rebecca Schaumloffel, RPR, CLR
Job 56153

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seeing the term online, the term "timeline"

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online versus hearing it over the phone

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change the results of the survey?

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A.

Well, as I mentioned in the

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report, there are two elements to the answer

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to that question.

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respondents -- sorry, since the consumers in

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the marketplace would have encountered this

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stimulus only online, I thought that by not

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researching it online, one violated the rule

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of conducting a survey that replicates market

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offering circumstances as closely as

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possible.

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One is that since the

And the second is that the

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presence of this stimulus being limited to

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only online forces -- forces consumers to

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read the name and to -- as I mentioned, to

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subvocalize it in their own minds, to read it

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out loud without reading aloud but in their

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minds, and that's why it is called

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subvocalization.

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So that the reading of each

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individual is their own idiosyncratic

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reading.

And by doing it on the phone, two
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problems arose.

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was not allowed to read it as they would

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individually.

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telephone interviewing, we have no way to

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control how the name was enunciated, cadence,

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completeness and so on, and I call that the

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auditory bias.

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One is that each individual

And secondly, that in

So those two together I think

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argue strongly against a telephone data

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collection method for this kind of survey.

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Q.

You are aware, aren't you, that

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the interviewers not only stated the terms

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that they were using but also spelled them

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out?

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A.

Yes, I am aware.

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Q.

And you -- will you concede that

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that counteracted any of the effects that you

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just described?

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A.

No.

Because there is still the

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interviewer's voice rather than the

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respondent's, quote/unquote, inner voice or

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the subvocalization.

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surprised, and I don't know why anyone would

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do that, would use the telephone interview in

I am frankly very

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a situation like this.
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Wouldn't that -- the

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subvocalization and auditory bias issues that

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you just mentioned, wouldn't they potentially

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exist in any survey, any genericness survey

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that's done over the phone, regardless of the

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context of the goods and services at issue?

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A.

If the respondent has a chance to

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be exposed to the -- to the term, the word,

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the mark, in speech, then I would think that

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that would be proper to do a telephone

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interview.

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My point is that these elements

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or these marks that are being studied here

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would never be exposed -- would be exposed

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only online, visually, and so I think that

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using -- forcing of -- on it the telephone

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interviewing method is a grave mistake.

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Q.

But if you were to go the online

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route for such a survey, you should not

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incorporate elements that skew the results

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one way or the other, would you agree, visual

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elements?

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A.

Sorry, I didn't understand.
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Q.

For example, to take one extreme,

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if someone did a survey, genericness survey

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for the term "timelines" and in the visual

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display put a little R, trademark

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registration symbol after the word

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"timelines," that would skew the results,

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right?

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have to not do when you present it to make

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sure that people aren't led one way or the

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other.

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A.

So there are things that you would

Well, obviously, yes, obviously.

With the R, it is obvious.
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What would you propose that the

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visual presentation of the term "timelines"

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in a genericness survey look like in an

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online survey?

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A.

Block letters.

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Q.

Anything else on the page?

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A.

No.

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Q.

Why does a determination of the

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term's genericness depend upon creating a

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marketplace situation?

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point you made in the rebuttal report.

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A.

I think that is a

It is the method of exposure of
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the consumer in the market to the name that

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matters here.

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only way in which consumers would encounter

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the word "timelines" would be on a page, then

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I submit that modifying the method of

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communication to auditory, from visual to

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auditory, introduces an unknown bias.

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Q.

And as I said before, if the

Do you think that consumers'

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experience with a term like "timelines" in a

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non-marketplace condition, such as a school,

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homework, would have a bearing on whether the

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term "timelines" has become generic?

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A.

I have no idea what the question

is, I must confess.
Q.

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I will rephrase.
Your point, correct me if I am

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wrong, is that you think a marketplace

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condition should be recreated when assessing

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the genericness of the term "timelines,"

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correct?

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A.

I think they should -- as

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McCarthy and others would say, one of the

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principles of trademark research is to come

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as close as possible to the marketing
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exposure conditions.

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important principle of survey research

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conducted for litigation purposes.

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Q.

Yes.

That's an

Do you believe that consumers

only encounter the term "timelines" online?
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I believe that the litigated area

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here is the timeline -- the exposure, which

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can occur only online.

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It is, after all, a

website.
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But wouldn't you concede that the

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more one encounters an arguably generic term

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in a non-marketplace context, the more

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difficult it will be for that person to view

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that term when encountered in a marketplace

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context as non-generic?

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A.

No, I don't think there is any

basis for that assertion.
Q.

So from earlier answers, you are

familiar with Teflon surveys?

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A.

Yes, I am.

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Q.

What's your understanding as to

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how a Teflon survey works?
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It asks people, respondents to

distinguish between common names and brand
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your contention that the order of the testing

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control questions as used by Dr. Jay

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invalidates or biases the results of the

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survey?

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point to any empirical evidence that that's

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the case or surveys that have been attacked

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by courts?

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A.

I know you believe that, but can you

Not in the legal context, no.

It

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is a matter of the principles of marketing

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research, and it goes back to Diamond and --

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particularly to Diamond, which is the

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authority in this case, that order bias has

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to be handled in survey research, and if it's

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not handled, then -- if it's not handled

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properly, then it's -- it brings into

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question the results.

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Q.

Why do you assert that the stated

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results would have been more accurate if the

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"don't know" and "I haven't heard of" answer

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options were separate?

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A.

Well, because these are two very

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different categories of answers.

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report asks people to not -- permits people

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to not answer the question if they have never
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heard of it.

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in a genericness report, one is interested in

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the opinion of the person, and I don't think

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that a precondition of that is awareness of

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it.

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"don't know" is -- are two very different

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categories.

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to make a decision.

Now, what we are -- typically

The moment you do that, these two,

So "don't know" is the inability
"Haven't heard of it" is

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a definitive statement about -- that says

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since I haven't heard of it and since you

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allowed me not to answer because I haven't

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heard of it, which are very different

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answers, and when we combine answers, we are

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allowed to combine only those that come from

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the same roots, the same family.

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are two separate, totally separate contexts.

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Q.

Here they

And had those answers been

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separated, can you give me an example of how

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the -- how and to the extent the overall

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results of this survey would have differed?

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A.

That's precisely the problem.

We

don't know.
Q.

Do you think those two answers

are mutually exclusive, "I don't know" and "I
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haven't heard of"?
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Yeah.

I think anybody can agree

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that they are from two different contexts,

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and therefore, they -- I don't know if the

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right term is "mutually exclusive," but it

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belongs -- and that -- yeah, they are

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mutually exclusive, either "I don't know" or

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"I haven't heard of it."

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Q.

If we look at the -- in your

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rebuttal report, the section on analysis

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bias.

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A.

Yes, sir.

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Q.

Do you have an understanding of

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the concept of acquired distinctiveness in --

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under trademark law?

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A.

Yes, I do.

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Q.

What do you understand that to

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mean?
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That people are able to

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differentiate this trademark -- the trademark

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in question from other trademarks in the

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course of time.

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Q.

From a trademark law perspective,

do you understand the difference between a
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distinctiveness and function as a source

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identifier?

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A.

If you are ready to accept that

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you measure genericness in your sense, that

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it's a generic word, as being measured by

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whether it is a common word or not -- common

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name, I should say.

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here, my point being, between what research

There is a disconnect

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does, using common name versus brand name,

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and what -- what the law implies or looks at.

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My contention -- the reason I

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introduced the product life cycle is that

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somewhere in the middle of the product life

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cycle, when it grew enough, then Timelines or

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any other name, 50% of the population may say

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that's a brand name.

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life cycle, there is not sufficient

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familiarity of it, with it as a brand name,

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so it treats it as a common name.

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Q.

But early on in the

Now, in your rebuttal report, you

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concluded that or you stated the conclusion

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that the Jay, Deborah Jay genericness survey

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didn't provide its respondents with a frame

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of reference.

I believe I saw that reference
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