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)

EXHIBITP

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CiJ.R.17plEn
United States District Court
Eastern District of Michigan
**Confidential - Under Seal**

30(b )(6) and Individual Deposition

Of

Donnie J. Misino
Volume"

November 30,2010

The Weather Underground, Inc.

v.
Navigation Catalyst Systems, Inc., et al.

COPy"

30(b){6) and Individual Deposition of Donnje J. Misino
Confidential Under Seal - Volume II

11/30/2010

There's only, I believe, one or two people

1

2

that use it.

3

say they're going to do a scrub on certain terms.

4

Q

But they

I believe I've heard them

And my -- I'm wondering whether or not that

5

part of the system was developed in order to do the

6

scrub we heard about in 2008 on the existing

7

portfolio of domains that had already been

8

registered?

9

10

A

The third piece specifically where you

upload terms

11

Q

Right.

12

A

-- and match against?

13

14
15

I believe that functionality existed prior
to that.
Q

And one of the things that Seth Jacoby had

16

talked about -- let me ask you if you recall -- was

17

that at some point the decision was made to not only

18

do a trademark analysis within your system of

19

domains prior to the registration, but to go back

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and do a -- a scrub of the current portfolio against

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the database.

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Does that sound familiar to you?

23

A

Yes.

24

Q

Do you believe that would have been in

25

2008?

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A

When the scrub was specifically done?

2

Q

Yeah/ when the scrub was specifically done.

3

A

11/30/2010

I believe that's an ongoing/ continuous

4

effort/ though I know there was a moment where they

5

queued up our entire domain database to be

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reevaluated/ I believe/ in 2008.

7
8
9

I believe that's the event you're referring
to.
Q

10

Exactly.
And I think what Seth had testified to is

11

that essentially they -- you stopped/ for all

12

practical purposes/ registering new domains and

13

devoted the system to this scrubbing in 2008.

14

Does that sound familiar?

15

A

I remember the -- yes/ it does.

16

Q

And that is to say you wanted all tne

17

computer resources to be devoted to the scrub and

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personnel resources/ I take it/ as well.

19

Does that sound correct?

20

A

It sounds correct.

21

Q

Now/ this ability to upload a number of

22

terms and match it against a trademark database/ how

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is that different than the fuzzy matching tool on

24

new registrations?

25

A

When you do new registrations/ you're

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uploading a list of domain names to match against

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11/30/2010

the USPTO database.

3
4

When you already have the domain names -I'm -- I'm sorry.

5

As far as the scrub that was done in 2008?

6

Q

Sure, sure.

7

A

That's the same.

8

In both cases, you're

uploading a list of domains.
Right.

You're just uploading a different

9

Q

10

list?

11

A

Right.

12

Q

But the back-end technology is pretty much

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the same?

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A

Yes, it is the same.

15

Q

And it's still a fuzzy match system?

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A

Yes.

17

Q

With regards to the comparison of new

18

registrations against the trademark database, when

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did that functionality first come into place within

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the CMS system, to your recollection?

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MR. DELGADO:

Can I have that read back.

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{The record was read as follows:

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"Q

24

comparison of new registrations

25

against the trademark database,

With regards to the

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when did that functionality first

2

come into place within the CMS

3

system, to your recollection?")

4

MR. DELGADO:

11/30/2010

I guess 1111 object.

5

not new registrations, new candidates for

6

It's

registrations that are being compared.

7

And also I think there's -- there's some

8

ambiguity to the question because I think the

9

documents show that there was a fuzzy match

10

component that he never worked on from 2005, and the

11

one he worked on

12

about either one or the one he worked on.
MR. SCHAEFER:

13
14

15
16

so I don't know if youlre asking

That's fair enough.

BY MR. SCHAEFER:
Q

Let's start with the -- let's talk about

fuzzy matching.

17

Do you have an understanding of what the

18

system was in 2005 for fuzzy matching of domain

19

prospects against trademarks?

20

A

live heard just a little bit about it.

21

Q

What's your understanding of how that

22
23

system worked?
A

I know that there was some sort of fuzzy

24

match against the USPTO database, and a list was

25

produced of matches.

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11/30/2010

it worked that way.
Q

With regards to the CMS system during -- at

3

least towards the end of the domain tasting process

4

after you were able to get some programming in place

5

to deal with some of these issues, how did your

6

system serve up the domains for review -- or strike

7

that -- how did your system serve up the domains to

8

keep for registration?
Was there a batch file that got uploaded,

9

10

or was the data already within the system?
Do you understand?

11

believe --

12

A

Yes.

13

Q

Where is the check box in the process, I

14

I

guess?

15

A

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keep_

A spreadsheet would be uploaded to flag to
I believe -- I think it was a CSV file.
So I believe the process is that they would

17
18

get an e-mail report with traffic and revenue data

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for all the domains that are being tasted.

20

From those, they would do their review, and

21

they would select the list that they wanted to keep

22

and upload those via a CSV file to admin.

23
24
25

Q

Got it.
With regards to the fuzzy component of the

trademark matching system, the logic of that

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component, has it changed since first launch until

2

11/30/2010

today?

3

A

We added the NGram matching.
Initially it just used the fuzzy matching

4

I believe that it was available to

5

component.

6

people who worked at the company, though it was

7

still in development.

8

afterwards added the NGram portion.

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Q

Okay.

And we pretty quickly

What's the distinction between the

10

NGram and the USPTO database trademark matching

11

systems?

12

A

13

It's part of it.
From a conceptual level, when we say fuzzy

14

matching, I'm really referring to both the fuzzy

15

matching third-party component, which does its

16

textual term-to-term matching, plus the NGram

17

matching, which splits the two terms up into

18

components and compares the number of repeated

19

components among the two.

20
21

Those both come together to give us what we
conceptually call the fuzzy match result.

22

Q

23

Okay.

And -- let's just take a quick

break.

24

THE VIDEOGRAPHER:

25

We are off the record.

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11/30/2010

from a table that I had loaded it into.

2

That's about the earliest first step I ever

3

would have taken in building some trademark

4

application, which is to get the trademark data to

5

make it available to some system.

6

So this would have, you know, preceded any
I built.

This would have been one of

7

system I

8

the first steps.

9

matching and those sort of things came later.

10

Q

So this is well before fuzzy

Because earlier you had thought, based on

11

that same exhibit, that it was possible that you

12

could have been deployed as of June 2006.

13
14

Are you reconsidering that testimony at
this point?
MR. DELGADO:

15
16

Objection; mischaracterizes

his testimony.
THE WITNESS:

17

If I said that, that would

18

have been incorrect because this clearly

19

indicates

20

development.

21

I believe I said that something was in

But this certainly would indicate that

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nothing would be available at this time.

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BY MR. SCHAEFER:

24
25

Q

And how much longer after doing that stored

procedure would you estimate it would have taken you

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to actually deploy your system?

2
3

11/30/2010

A
was

If the development came after this date, it
it took a good while.

4

I remember we started building a basic

5

system and realized the difficulty of doing the

6

matching.

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work.

8

approaches and different components.

So we began investigating fuzzy matching

9
10

As we said, the literal matching didn't

And in doing it, I do remember it took us a
bit longer than we would have liked.

11

But there was a lot of other -- there was

12

other things going on.

I -- I -- it's hard for me

13

to say.

14

after this date, if I sat in a room and did nothing

15

but that, it would still take at least, you know

16

it would take a while to do this.

17

guess.

You know, if what we built as of today

It's hard to

18

Q

At least what?

Days, months, or years?

19

A

It was certainly months, but I remember

20

through -- we went through several iterations of

21

trying to make it work, and then later on, after we

22

asked for other opinions, we added the NGram

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separate.

24
25

I would think it's probably at least a year
after this date before our system was functional

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similar to -- similar to the way it is today.

2

11/30/2010

Probably a little bit longer than that.

3

Q

Okay.

So maybe sometime late in 2007?

4

A

That would be a decent estimate.

5

Q

Okay.

6

A

Maybe.

7

Q

And so during this entire period before the

"-

Maybe.

8

launch, as I understand your prior testimony{ the

9

old trademark matching system would have been the

10

thing that would have been used by the human

11

reviewers, whatever that system was?

12

A

I wasn't aware of it.

I don't know.

13

As I said, prior to recently I wasn't even

14

aware that there was another system in place before

15

mlne.

16

Q

17
18

How did you became aware that there was a

system before yours?
A

I believe when I was hearing about Mavi's

19

deposition testimony, she -- I -- I didn't read her

20

transcript { but someone had said that she had

21

mentioned that there was an old trademark system in

22

place that she was aware of before I started working

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at Firstlook.

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25

Q

And before your system was deployed{ the

entire trademark database was, in fact, available

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want that brought to someone's attention, and I know

2

those are treated very seriously and reviewed very

3

carefully if there's a blacklist term match for

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11130/2010

registering.

5

Q

Okay.

So hypothetically, if someone wanted

6

to enter the term WND into that part of the system,

7

that would come back as flagged as a blacklist term

8

for the human reviewer to consider?

9

A

Yes.

10

Q

And on the first part of the system with

11

the domain name, you just simply enter in the

12

literal domain name with the dot-com or whatever,

13

and it's automatically excluded from being -- from

14

working its way through your system at all?

15

A

It's excluded from the registration path.

16

Q

Now, how long has that first part of the

17

system been in place where you can enter in a domain

18

name and it will preclude it from coming up for

19

consideration of registration?

20

21
22
23

A

It's hard to say, but sometime between

2008, two thousand
Q

late 2007 maybe.

And who -- would you have implemented that

part of the system?

24

A

I did.

25

Q

And who would have asked you to do that?

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STATE OF CALIFORNIA

2

11/30/2010

COUNTY OF LOS ANGELES

ss:
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I, JUDY SAMSON, do hereby certify:

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That I am a duly qualified Certified Shorthand

6

Reporter, in and for the State of California, holder of

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certificate number 6916, which is in full force and

8

effect and that I am authorized to administer oaths and

9

affirmations;

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That the· foregoing deposition testimony of the

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herein named witness was taken before me at the time and

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place herein set forth;

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That prior to being examined, the witness named

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in the foregoing deposition, was duly sworn or affirmed

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by me, to testify the truth, the whole truth, and

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nothing but the truth;

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That the testimony of the witness and all

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objections made at the time of the examination were

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recorded stenographically by me, and were thereafter

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transcribed under my direction and supervision;

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That the foregoing pages contain a full, true

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and accurate record of the proceedings and testimony to

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the best of my skill and ability;

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That prior to the completion of the foregoing
deposition, review of the transcript was requested.

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Confid~ntial

Under Seal

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I further certify that I am not a relative or

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employee or attorney or counsel of any of the parties,

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nor am I a relative or employee of such attorney or

4

counsel, nor am I financially interested in the outcome

5

of this action.

6

IN WITNESS WHEREOF, I have subscribed my name

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8

this

10th day of December

2010

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12

JUDY SAMSON, CSR No. 6916

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