TimesLines, Inc v. Facebook, Inc.
Filing
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MEMORANDUM by Facebook, Inc. in support of motion in limine 69 to Exclude Dr. Eli Seggev's Survey and Related Expert Report and Testimony (Attachments: # 1 Declaration of Lori F. Mayall, Esq., # 2 Exhibit A, # 3 Exhibit B)(Hughes, Brendan)
Exhibit B
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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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E. SEGGEV
Q.
That was in an effort to identify
an appropriate universe --
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A.
Likelihood of -- I'm sorry.
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Q.
So when you conduct these
Yes.
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surveys, you believe it is important to
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develop the appropriate universe of
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participants by screening people who are
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unlikely to be interested in relevant goods
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or services of the case?
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A.
That's rule number one.
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Q.
In looking at this entire list of
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cases, do you have an idea -- let me ask you
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a question.
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one of these cases?
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A.
Did you conduct a survey in each
Yes.
Let me go back for a
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second, because there may be -- yes.
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answer is yes.
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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
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E. SEGGEV
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research, which if you look at the objective,
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as I defined it, it was to evaluate the
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likelihood of confusion between the name of
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this website and a word that's used in
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another website, unnamed to the respondents.
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So you have got to consider the
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respondent looking -- what information you
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provided them, and that's what I did.
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Q.
Was this survey designed to test
for forward confusion or reverse confusion?
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The simple answer is forward
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confusion.
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because the -- it seems to me that the -- the
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distinction between forward and reverse is
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based on what might be called need-based
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consumer scenario.
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And the reason I qualify it is
In our experience in likelihood
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of confusion, yours, mine, up to this recent
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time, we were confronted with situations in
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which people are in a pre-purchase state.
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They search, they evaluate, they decide what
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brands to enter in their consideration set,
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as we refer to it.
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purchase, and it is at that point that we
Then they make a
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E. SEGGEV
name is Timelines, web --
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Q.
But did you --
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A.
I'm sorry.
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After they have been
exposed to the website Timelines.
Q.
But did you consider asking the
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question in the following terms:
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the following companies, if any, do you most
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associate with the website you just reviewed?
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A.
Which of
No, I did not, because the
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critical elements in this environment, in
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this suit, are the names themselves rather
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than the websites, the sites.
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Q.
All right.
But an association
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between two words doesn't necessarily lead to
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an association between the two entities who
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are using those words.
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MR. ALBRITTON:
Is that a
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question?
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Q.
Wouldn't you agree?
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A.
Well, the purpose of the study
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was if -- to find out what are the entities
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that consumers associate with this word,
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"timelines."
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Q.
But have you reviewed Dr. Itamar
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connection and affiliation?
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A.
You were talking about
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association and affiliation.
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connection and affiliation?
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Q.
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affiliation.
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A.
You mean
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Yeah, I'm sorry, association and
There is no -- in my mind, but
again, it is an empirical question, it would
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have been quite similar.
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that I prefer association is because it is
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not an affiliation of one website with
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another website, but the focus was on the
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names only.
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me to represent that reality as well as
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association.
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means there are entities that are connected,
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are affiliated in some way.
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The only reason
So affiliation did not sound to
Because affiliation, to me, it
And I wanted to focus, and this
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research focuses, on the words, on the names,
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rather than the companies that stand behind
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it.
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So that was my rationale.
Q.
So is it fair to say that you
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believe the results of your survey show a
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connection between the word "Timelines" and
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Facebook, but not a connection between the
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Timelines website and the Facebook website or
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the source of the Timelines website and
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Facebook; you were focused on the words?
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A.
That is not a correct
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representation of yours, because you used the
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term "connection," and I didn't do anything
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with connection here.
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Q.
I am sorry, let me rephrase that
question using the word "association."
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You showed -- you believe that
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the results of your survey showed an
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association between the word "Timelines" and
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Facebook and not an association between the
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Timelines.com website and the Facebook
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website or the source of the Timelines
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website and Facebook.
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association between the word and Facebook?
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A.
You were focused on
As the question reads, which of
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the following, and so on, do you associate
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this name with, which is Timelines.
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Q.
So the answer is yes?
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A.
Yes.
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Q.
If you look at page seven,
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E. SEGGEV
Depends on the question.
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Are you aware of a single case in
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which a survey that asks respondents only one
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question about what or who they associate the
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presented mark with has been accepted by a
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court?
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A.
I don't know what you mean by
that, only one question.
Q.
Well, a survey similar to the one
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that you conducted here, where, you know, the
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question, the key question, I think you would
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agree, is, "Which of the following companies,
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if any, do you most associate this name
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with?"
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Are you aware of any case where a
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survey that rested significantly on a single
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question as to an association between a word
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and other companies was relied upon to find
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trademark infringement?
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A.
If you flip that page, you will
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see there is a second question that belongs
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to the same sequence, I would argue, that
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asks for the reasons for so doing.
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in line with likelihood of confusion
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E. SEGGEV
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procedures that -- whether it is Eveready or
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Squirt, that ask for the reasons, and so does
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this survey.
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So it is really two questions,
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first of all, and those two questions are --
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in my view, form a complete set for the
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purposes of this study.
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Q.
But are there any cases in which
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an Eveready or Squirt survey relied upon a
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central question that focused on association
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between a word and other companies?
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A.
Oh, that's -- sorry, that's a
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different question.
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time that I encountered it, and this is --
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this has been my solution to it.
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Q.
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No.
This is the first
I apologize, I -MR. ALBRITTON:
You need a copy
of something?
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MR. WILLSEY:
No.
I was looking
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for a different exhibit, but I will
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find that on a break and circle back
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to the issue.
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Q.
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Did you consider doing -- using
any other approaches to this survey?
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When
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E. SEGGEV
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incorrectly determined, that could invalidate
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the results of the survey?
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A.
As a general statement?
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Q.
As a general statement, yes.
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A.
Absolutely, yes.
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Chapter one,
paragraph one of any textbook.
Q.
And I may know the answer to
this, but -- for the reasons that you just
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stated, but to clarify, you did not make any
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effort to obtain any information from
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Timelines regarding their existing user base,
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the characteristics of their existing
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subscribers, did you?
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A.
I did not inquire about that.
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Q.
And did you inquire from
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Timelines or any representative of Timelines
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as to the intended future audience of
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Timelines?
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A.
No, sir.
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Q.
You are aware that certain
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treatises such as McCarthy state that in
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cases of forward confusion, you should focus
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the universe on the universe associated with
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the defendant infringer, right?
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E. SEGGEV
C E R T I F I C A T E
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STATE OF NEW YORK
:
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COUNTY OF NASSAU
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SS.:
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I, REBECCA SCHAUMLOFFEL, a Notary
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Public for and within the State of New York,
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do hereby certify:
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That the witness whose examination
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is hereinbefore set forth was duly sworn and
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that such examination is a true record of the
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testimony given by that witness.
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I further certify that I am not
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related to any of the parties to this action
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by blood or by marriage and that I am in no
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way interested in the outcome of this matter.
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IN WITNESS WHEREOF, I have hereunto
set my hand this 11th day of December, 2012.
__________________________
REBECCA SCHAUMLOFFEL
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