Weather Underground, Incorporated v. Navigation Catalyst Systems, Incorporated et al

Filing 201

DECLARATION by William A. Delgado re 193 Response to Motion filed by Connexus Corporation, Firstlook, Incorporated, Navigation Catalyst Systems, Incorporated (Attachments: # 1 Exhibit K, # 2 Exhibit L, # 3 Exhibit M, # 4 Exhibit N, # 5 Exhibit O, # 6 Exhibit P, # 7 Exhibit Q, # 8 Exhibit R, # 9 Exhibit S, # 10 Exhibit T, # 11 Exhibit U, # 12 Exhibit V, # 13 Exhibit W) (Delgado, William)

EXHIBITW

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

1

2
3

Case No. 09-CV-I0756
U.S. Magistrate Judge
Virginia M. Morgan
Detroit, Michigan
May 19, 2010
2:29 p.m.

WEATHER UNDERGROUND,
INCORPORATED,

4
Plaintiff,
5
v
6
7
8

NAVIGATION CATALYST SYSTEMS,
INCORPORATED,
Defendant.

--------------------------/
9

Ordered By:

ENRICO SCHAEFER, ESQ.

10
MOTION HEARING
11

APPEARANCES:
12
For the Plaintiff:

ENRICO SCHAEFER, ESQ. (P43506)
Traverse Legal
810 Cottageview Drive
Suite G-20
Traverse City, MI 49684
231-932-0411

For the Defendants:
(By Phone) :

WILLIAM DELGADO, ESQ.
Willeken, Wilson, Loh & Lieb
707 Wilshire Boulevard
Suite 3850
Los Angeles, CA 90017
213-955-9240

Court Recorder:

N/A

Transcriber:

Deborah Kremlick

13
14
15
16
17
18
19
20
21
22
23
24
25

Proceedings recorded by electronic sound recording, transcript
produced by transcription service.

PAGE

33

1

are famous at the time of registration of such domain names

2

without regard to the goods or services of the party.

3

So your position that it would be limited only to ones

4

that are confusingly similar to the 51 domain names or

5

whatever at issue here, I think reads out the clear language

6

of -- of eight.

7

to give you say another 50 names and then you give us all the

8

domain names that are registered like that.

So what I'm -- I'm willing to do is ask him

MR. SCHAEFER:

9

Well, here's what -- here's the

10

problem.

Part of it is we asked them for the other domains

11

that infringe our trademarks, okay.

12

by kind of random searching just last week found 11 more.

13

if we can't get the data base --

14

MR. DELGADO:

15

MR.

16

MR. DELGADO:

17

MR.

They said zero.

We just
So

No,' that's not true.

SCHAEFER:

If we can't get the
That's not true.

SCHAEFER:

--

if we can't get the data base,

18

Your Honor, we aim to identify th,e domains at issue in this

19

case.

20

Thewunderground.com.

21

wunderground.

22

Tropicalweatherunderground.com.

23

us to search on, it's impossible for us to -- and they refuse

24

to tell us what other domains they have of ours and they've

25

said none and we know it's not true.

These are examples of the ones we found last week.
Keep in mind our trademark is

So this is registered to them.
So without the data base for

PAGE
The other thing is, Your Honor, it's just data.

1

34
They

2

have affidavits from their people Seth Jacoby that said they

3

had 300,000 domain names as of two years ago.

4

down to something like 70,000 domain names as of this year.

5

So there's --

6

THE COURT:

7

MR. SCHAEFER:

And now they're

I thought they had 16,000,000.
Well, that's what he said, but I got

8

an affidavit that says completely otherwise as of -- as of a

9

couple years ago.
MR. DELGADO:

10
11

Your Honor, can I respond to that?

I

disagree with a lot of what Mr. Schaefer is -MR. SCHAEFER:

12
13

grace Co. names.

14

I think he was talking about the ad

Because that blossoms -- that blossoms the

number.
THE COURT:

15

Okay.

stop talking.

He's

If you don't stop and give him a break,

16

already on the phone.

17

he can't be heard.

18

the telephone line, okay?

It's already frustrating enough without

MR. DELGADO:

19

All right.

Mr. Delgado.

Okay.

So here's what I was going to

20

say.

Mr. Schaefer made the statement that they asked us to

21

identify other domain names and we said zero.

22

case.

23

dispute as to how domain names at issue would be defined from

24

these requests.

25

resolve this dispute.

That is not the

What happened was there is -- there was a good faith

I have proposed to Mr. Schaefer and to
If you want me to identify other domain

PAGE

35

1

names that you know, are possibly violative of your client's

2

mark, I will do that.

3

for as many

4

names to -- to basically disclose to them what it is that we

5

think that might arguably even be olose to that.

6

I will run, you know, as many searches

as many strings to capture as many possible

You know, so for example, if he wants to run a search for

7

under, you know, we'll disclose any domain name that has the

8

phrase under.

9

call the string eather, E-a-t-h-e-r which would capture

If he wants to run it for you know what I would

10

Weather,. you know, Qeather, and it's the Q next to the W on

11

the keyboard.

12

an issue.

13

problem for us has always been you know, to go back six years

14

and divulge statistics for -- you know, for 16,000,000 and

15

that 16,000,000 number is essentially from 2004 forward,

16

that's why that number is as high as it is.

Will be do that.

We will happily do that.

17

THE COURT:

18

MR. DELGADO:

19

That -- you know, that is not

Okay.

The question or the

Here's what -- here's --

And we can't do that without shutting

down the system.
THE COURT:

20

Okay.

You have some choices here, Mr.

21

Schaefer.

22

in 38, or you can just have a list of domain names without any

23

of this crap.

24
25

You can have fewer domain names with all this crap

MR. SCHAEFER:
Honor.

We'll take the domain names, Your

And I think I'm -- I'm entitled to them under that

PAGE

50

1

2
3

4
5

6

7

I certify that the foregoing is a correct transcript from the

8

electronic sound recording of the proceedings in the

9

above-entitled matter.

10
11
12

13
14
15
16
17
18
19
20
21
22
23
24
25

IslDeborah L. Krem1ick, CER-4872

Dated: 6-14-10