TimesLines, Inc v. Facebook, Inc.

Filing 156

MEMORANDUM by Facebook, Inc. in Opposition to motion in limine 123 No. 1 to Exclude Dr. Deborah Jay's Survey and Related Expert Testimony (Attachments: # 1 Declaration of Dr. Deborah Jay)(Willsey, Peter)

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

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Civil Action No.: 11 CV 6867
HONORABLE JOHN W. DARRAH

DECLARATION OF DR. DEBORAH JAY IN SUPPORT OF
DEFENDANT FACEBOOK, INC.’S OPPOSITION TO TIMELINES, INC.’S
MOTION IN LIMINE NO. 1
I, Dr. Deborah Jay, declare:
1.

I am President and Chief Executive Officer of Field Research Corporation, a

research firm specializing in marketing and public opinion surveys retained on behalf of
Facebook, Inc. (“Facebook”) in connection with the above-titled action. I submit this declaration
in support of Facebook’s Opposition to Timelines’ Motion in Limine No. 1.

I make this

declaration upon personal knowledge and, if called and sworn as a witness, I could and would
testify as to the matters set forth herein.
2.

Numerous courts, including this one, have admitted and relied upon telephone

surveys that I have conducted. See, e.g., TY Inc. v. Softbelly's Inc., 2006 U.S. Dist. LEXIS
100736, at *37 (N.D. Ill. Apr. 7, 2006); UGG Holdings, Inc. v. Severn, 2005 WL 5887187, at *5
(C.D. Cal. Feb. 23, 2005); Auto. Club of S. Cal. v. The Auto Club, Ltd., 2007 WL 704892, at *4
(C.D. Cal. Mar. 15, 2007); Great Am. Rest., 2008 WL 1808532, at *3 (E.D. Tex. Apr. 21, 2008).
In addition, several courts and the Trademark Trial and Appeal Board have admitted and
considered Teflon surveys that I conducted using the same recordation process for “have not
heard” and “don’t know” answers as I used in the survey in this case. See, e.g., UGG Holdings,

Inc., 2005 WL 5887187, at *5; Auto. Club of S. Cal., 2007 WL 704892, at *4; Great Am. Rest.,
2008 WL 1808532, at *3.
3.

In preparing the survey designed to determine the primary significance of the

terms “Timeline” and “Timelines” when used in connection with a website or website feature, I
randomized the questions relating to the control terms in order to minimize the influence of any
particular control term on the responses to the tested term. By reading the control terms first,
this method of questioning ensured that all respondents had the same frame of reference before
being asked to classify the test term as a brand or common name. This is an approach often used
in Teflon surveys.
I declare under penalty of perjury that the foregoing statements are true and correct.
Executed in San Francisco, California this 15th day of April, 2013.

Dr. Deborah Jay
FIELD RESEARCH CORPORATION
601 California Street, Suite 900
San Francisco, CA 94108
Telephone: [phone]
Email: [e-mail]

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CERTIFICATE OF SERVICE
The undersigned, an attorney, hereby certifies that he served the foregoing
DECLARATION OF DR. DEBORAH JAY IN SUPPORT OF DEFENDANT
FACEBOOK, INC.’S OPPOSITION TO TIMELINES’ MOTION IN LIMINE NO. 1 by
means of the Court’s CM/ECF System, which causes a true and correct copy of the same to be
served electronically on all CM/ECF registered counsel of record, on April 15, 2013.

Dated: April 15, 2013

/s/ Brendan J. Hughes
Brendan J. Hughes
COOLEY LLP
1299 Pennsylvania Ave., NW, Suite 700
Washington, DC 20004
Telephone: [phone]
Fax: [phone]
Email: [e-mail]

190541 DC

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