TimesLines, Inc v. Facebook, Inc.

Filing 81

DECLARATION of Brendan J. Hughes regarding motion for summary judgment 79 , memorandum 80 (Attachments: # 1 Exhibit 1 - 13, # 2 Exhibit 14 - 17, # 3 Exhibit 18 - 19, # 4 Exhibit 20 - 31, # 5 Exhibit 32 - 35, # 6 Exhibit 36 - 40, # 7 Exhibit 41 - 43, # 8 Exhibit 44 - 46, # 9 Exhibit 47 - 51, # 10 Exhibit 52 - 57, # 11 Exhibit 58 - 59, # 12 Exhibit 60 - 62, # 13 Exhibit 63.1, # 14 Exhibit 63.2, # 15 Exhibit 64 - 71)(Hughes, Brendan)

Exhibit 36

Exhibit 37

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Exhibit 38

Exhibit A

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Exhibit B

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Exhibit 39

Exhibit 40

CONTAINS PORTIONS MARKED HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY

Page 1
1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF ILLINOIS

3

EASTERN DIVISION

4
5
6

TIMELINES, INC.,
Plaintiff-Counterdefendant,
Case No.

7
8
9

vs.

11-cv-06867

FACEBOOK, INC.,
Defendant-Counterplaintiff.
-----------------------------------

10
11
12
13
14

CONTAINS PORTIONS MARKED
HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY

15
16

DEPOSITION OF DEREK DUKES

17

San Francisco, California

18

Friday, September 21, 2012

19
20
21
22
23
24

REPORTED BY:
CYNTHIA MANNING, CSR No. 7645, CLR, CCRR

25

JOB NO. 53590
TSG Reporting - Worldwide - 877-702-9580

CONTAINS PORTIONS MARKED HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY

Page 11
1

April 2007?

2

A.

No.

3

Q.

When was it available?

4

A.

The Facebook application was available in,

5

I believe October of 2007, when the platform was

6

available or broadly available.

7

Q.

"The platform" meaning Facebook?

8

A.

Facebook platform.

9

Q.

Do you still offer that Facebook

10

application?

11

A.

No, we do not.

12

Q.

When did you stop offering that?

13

A.

I believe it was in March of 2008.

14

Q.

And while you were offering the Facebook

15

application, did you offer any other goods and

16

services?

17

MS. MOORE:

18

THE WITNESS:

Object to form.
There may have been a time

19

when we offered both the Facebook platform and our

20

website.

21

no more than a month.

22

BY MS. MAYALL:

If so, that would have been for the -- for

23

Q.

And what was your website?

24

A.

Dipity.com.

25

Q.

Okay.

And what type of goods or services
TSG Reporting - Worldwide - 877-702-9580

CONTAINS PORTIONS MARKED HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY

Page 12
1

were offered through your website?

2
3

A.

timelines about topics.

4
5

Dipity.com is a place where users can make

Q.

And when did you start offering those

services?

6

A.

February or March of 2008.

7

Q.

And does Dipity -- or excuse me --

8

Underlying continue to offer the services -- strike

9

that.

10
11

Does Underlying continue to offer timelines
by topic at Dipity.com?

12

A.

Yes.

13

Q.

Has there been ever a time where Underlying

14

did not offer those services at Dipity.com?

15

A.

No.

16

Q.

So other than the Facebook application that

17

allowed the aggregate of information -- or strike

18

that.

19

In order to use the Facebook application

20

that Underlying provided, did you have to be a

21

Facebook user?

22

A.

Yes.

23

Q.

And what type of information -- strike

24
25

that.
So other than the Facebook application and
TSG Reporting - Worldwide - 877-702-9580

CONTAINS PORTIONS MARKED HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY

Page 15
1

that there are happy accidents, so discovery through

2

happy accidents.

3

MS. MOORE:

I apologize.

It's just a

4

little difficult to hear today by telephone.

5

forgive me for interrupting.

6

BY MS. MAYALL:

So

7

Q.

And how does Underlying use Dipity?

8

A.

Dipity is the main brand for Underlying.

9

Consumers don't know Underlying as a brand.

10
11

Q.

So the services we've discussed have been

marketed to consumers as Dipity services?

12

A.

Yes.

13

Q.

And as a registered user of Dipity, you're

14

able to create timelines; is that correct?

15

A.

Correct.

16

Q.

Is there anything else that you're able to

18

A.

You can embed the timelines.

19

Q.

What do you mean by that?

20

A.

If a user owned and operated a secondary

17

do?

21

website, say a newspaper website, and they created a

22

timeline about a topic that they were going to write

23

about, they could grab some HTML code for that

24

particular topic and support their article on their

25

secondary website.
TSG Reporting - Worldwide - 877-702-9580

CONTAINS PORTIONS MARKED HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY

Page 37
1

A.

People have heard of Dipity.

When you

2

Google "Dipity," a ton of information comes up about

3

the company.

4

people describing the service; there is testimonials

5

from teachers and newspapers who use the service.

6

We have a footprint on the web that we didn't have

7

in 2007.

8
9
10
11

Q.

There is news articles; there is other

So if you were pitching -- or, excuse me,

trying to offer your services to a new consumer
today, how would you describe your services?
A.

I would say Dipity is a service that lets

12

you create visual timelines and other presentations

13

on the web.

14

Q.

And what if you were not able to use the

15

term "timeline" to describe your services?

16

would you describe it?

17

MS. MOORE:

18

THE WITNESS:

How

Objection; form, foundation.
Dipity is a service where you

19

can collect information that has been timestamped

20

either automatically or manually and organized in a

21

time series fashion.

22

BY MS. MAYALL:

23

Q.

Do you think Underlying would be

24

disadvantaged in the marketplace if it couldn't use

25

the term "timelines" to describe its services?
TSG Reporting - Worldwide - 877-702-9580

CONTAINS PORTIONS MARKED HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY

Page 38
1

A.

Yes.

2

Q.

Has Underlying ever -- strike that.

3
4

Has Underlying continuously used the term
"timeline" to describe its services since 2007?

5

A.

Yes.

6

Q.

Has it ever stopped using the term

7

"timeline" for any reason?

8

A.

No, not that I can recall.

9

Q.

Has Underlying ever received any letters

10

stating an objection to its use of the term

11

timeline?

12

A.

Not to my knowledge.

13

Q.

E-mails?

14

A.

Not to my knowledge.

15

Q.

Phone calls?

16

A.

Not to my knowledge.

17

Q.

Any communications whatsoever?

18

A.

Not to my knowledge.

19

Q.

Has Underlying ever been asked to stop

20

using the term "timeline" in connection with its

21

service?

22

A.

Not to my knowledge.

23

Q.

Is Underlying aware of any instances of

24

consumer confusion arising from its use of the term

25

"timeline" in connection with its service?
TSG Reporting - Worldwide - 877-702-9580

CONTAINS PORTIONS MARKED HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY

Page 39
1

A.

2
3

Not to my knowledge.
MS. MOORE:

Object to form, foundation.

BY MS. MAYALL:

4

Q.

Going back to the document that you have in

5

front of you, which is the Dipity "About" page

6

located at www.dipity.com, does this appear to be a

7

true and correct copy of the Dipity About page?

8

A.

9
10

Yes.
MS. MAYALL:

Ms. Manning, I'd like to mark

this, then, as Exhibit No. 6.

11

(Deposition Exhibit 6 was marked for

12

identification)

13

BY MS. MAYALL:

14
15

Q.

Mr. Dukes, are you familiar with Timelines,

Inc.?

16

A.

Yes.

17

Q.

Are you familiar with the services that it

18

offers?

19

A.

In the fact that they are a competitor,

21

Q.

And how would you describe their services?

22

A.

A place where users can go and create

20

23

yes.

timelines about topics.

24

Q.

And why do you consider them a competitor?

25

A.

We offer the same service.
TSG Reporting - Worldwide - 877-702-9580