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)

EXHIBITQ

A Westlaw Deposition Services transcript, reported by LiveNote Certified
Partner: Rosenberg & Associates

United States District Court
Eastern District of Michigan
**Confidential - Attorneys' Eyes Only**
Deposition

Of

Seth Jacoby

September 15, 2010

The Weather Underground, Inc.

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

Jacoby, Seth
Confidential - Attorneys' Eyes Only

A.

1

2

Yeah, whatever that is.

9/15/2010

Was it July,

maybe, of 2008?

3

Q.

I think so.

4

A.

Prior to that date, we were able

5

to

6

less, you know, at that date, we vetted the domain

7

name prior to actually -- or after testing a

8

domain name.

9

we vetted the domain name after -- more or

. Q.

10

Okay.

So that makes sense to me .

So, essentially, once the add grace

11

period went away or that policy got changed

12

substantially --

13

A.

14

Q.

15

Right.
you started vetting domains prior

to registering them?

16

A.

Correct, yes.

17

Q.

All right.

While the add grace

18

period or policy was in place which allowed you

19

the five-day period to either keep or delete the

20

domain without having to pay for it, you would

21

have registered the domain, tested it, vetted it

22

and then decided whether to keep it during that

23

five-day period?

24

25

A.

What would happen was, just to give a

little more clarity, we would look at the -- we

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would test all the domain names/ bring out a group

2

of candidates that were eligible for registration/

3

delete and tag those names which were -- became

4

ineligible because of any trademark problems/ and

5

then those were deleted/ along with the rest of

6

the domain names.

7

were left were names which had been/ you know/

8

clean from trademark -- clean from the trademark

9

9/15/2010

process/ had cleaned that process/ and also had

10
11

And the remaining names that

qualified because of profitability.

Q.

Okay.

So there's a couple of

12

different things going on during that four-day add

13

grace period/ and so I

14

little bit.

want to break that down a

15

A.

Sure.

16

Q.

And I understand that there may be

17

things that happened after registration/ after the

18

five-day period/ but let's just focus in on that

19

five-day add grace period vetting.

20

One of the things you would have been

21

vetting for is whether or not it had enough

22

traffic to support positive monetization?

23

A.

Yes.

24

Q.

Okay.

25

And/ in general/ you're

basically trying to see whether or not you're

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going to be able to show and monetize, meaning

2

people clicking on enough ads over the course of

3

9/15/2010

the year, in order to cover the registry cost?

4

A.

So, let me just break it down very

5

simply.

6

of traffic, then it was kept.

7

certain amount of dollars that it generated in

8

that period, it was kept.

9

complicated system.

10

If a name had, you know, a certain amount

Q.

Okay.

If a name had a

It wasn't a very

And there was some sort of

11

prediction or logic as to whether or not that was

12

going to be profitable over the course of a year?

13

A.

14

it existed.

15

Q.

Yeah, it wasn't very high tech, but

And what was the -- in general, was

16

the number you were trying to beat the registry

17

cost or the registry cost plus employees, or what

18

was the number you were trying to beat out there

19

in order to make it profitable?

20

A.

21

equation.

22

Q.

That really wasn't part of the

Okay.

And then, in addition to that,

23

are you saying that, during the add grace

24

at least for certain periods, you would have also

25

done some sort of trademark vetting during that

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per~od,

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2

9/15/2010

period, or no?
A.

It would have been during the add

3

grace period, yes.

4

five-day period, or we would treat it as maybe a

5

four-and-a-half-day period, we would look at the

6

domain names that were eligible during that

7

period, and during that period, those names that

8

were eligible were vetted for trademarks, and

9

those names that were, you know, flagged as, you

10

know, ineligible would be deleted along with the

11

nonmonetizable domain names, and the remaining

12

names would be the clean domain names, which also

13

we believed would be profitable.

14

Q.

Okay.

So, again, during that

And would it be true that

15

during all periods of your employment with

16

Firstlook or its prior incarnations, that there

17

would have been trademark vetting during the add

18

grace period or did that come in at some point

19

during the years?

20

A.

So, let's see, while we were using

21

the add grace period, there was always trademark

22

vetting during that period.

23
24

25

Q.

During the four-and-a-half-day

period?
A.

Yes, while we were using the add

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9/15/2010

grace period as a tool to acquire domain names.
Q.

2

Okay.

And would you have also --

3

from the time you started employment, would you

4

have always used that add grace period?

5

A.

No.

6

Q.

Okay.

What years would you have

7

tasted domains during the add grace period, if you

8

recall?
A.

9

So, I believe we started acquiring

10

domains J..n the add grace period -- it was probably

11

late 2006.

12

you know, that was, but I

13

late 2006.

14

Q.

I'd have to look back and see when,

Okay.

think it was probably

And Donnie Misino" I

think he

15

testified that there was a transition sometime in

16

late 2006, early 2007 where it went from a purely'

17

human process to an automated software-driven

18

registration process.

19

Would that have been the period -A.

20

That sounds about right.

I

think we

21

started with a very human process and then we

22

realized we needed to build software around it.
Q.

23

Okay.

And so the software allowed

24

you the potential of vetting domains during the

25

AGP?

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1

9/15/2010

It helped automate that process of

2

the registration, the vetting and -- well, I don't

3

know, at that point, it wasn't really -- it was --

4

at that point, it was more -- there's many

5

iterations of that software.

6

add and delete and then it became a larger

7

automated trademark process, yes.

It started with the

8

Q.

Okay.

9

A.

Part of that trademark software

10

already existed.
Q.

11

Okay.

And so I think you testified

12

that there was always trademark vetting during the

13

AGP?

14

A.

Yes.

15

Q.

Was it true that when the software

16

first launched in late 2006 or early 2007,

17

whenever that date is, in that first iteration,

18

was there some sort of automated trademark

19

flagging or trademark vetting process built into

20

the software?

21

A.

I can't tell you.

I didn't write the

22

software and I wasn't the one, you know,

23

personally looking at the list of domain names

24

every day, but I can tell you that there was

25

always -- you know, there was always a service

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process, ln terms of trademark vetting, was, as I

2

9/15/2010

understand it, a human process?

3

A.

Yes.

4

Q.

Where real people would go, take a

5

. look at the domain that was being considered for

6

registration or that had been registered during

7

the AGP and trying to see if there's a trademark

8

issue with that domain, true?

9

10
11

A.

That is correct, yeah, vetting has

always existed.
Q.

Okay.

So as far as you know, at

12

least from the time you were first employed, there

13

has always been a human trademark vetting process

14

of some sort?

15

A.

Yes, ever since I've been employed at

16

the firm, there's always been a human element to

17

the trademark vetting process.

18

Q.

And back before Mr. Misino developed

19

this registration software, were you still -- were

20

humans involved in looking at domains during the

21

add grace period to see if there might be a

22

trademark issue or did that come after the

23

five-day period; do you know?

24
25

A.

So, humans have always been involved

during the -- when we were using the add grace

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period, humans were always involved in looking at

2

the domain names during the add grace period to

3

9/15/2010

exclude problematic names.

4

Q.

Okay.

And when do you recall first

5

using the add grace period to take a look at

6

domains?

7

8
9

10
11

A.

I think I answered that, which was in

late -- sort of late 2006, I believe.
Q.

Prior to late 2006, what was the

process for registering domains?
A.

Prior to 2006, we would

in the

12

morning, there would be a list of eligible domain

13

candidates that would be processed against the

14

USPTO database and against the blacklist.

15

Those names -- and there's also

16

well, there's a blacklist that excludes terms and

17

domain names that are flagged, and then there'S

18

the Do Not Register list, which names are included

19

in a list of domain names never to be registered

20

again.
So, for example, a domain name would

21

22

first be eligible for registration --

23
24

25

(Interruption by the Reporter.)
A.

A name would be eligible for

registration.

It would be looked at against the

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blacklist

I'm sorry, first, there was a

2

blacklist of terms, second was a list of domain

3

names that should never be registered again.

4

for example, if a domain name we looked at

5

yesterday was a trademark problem, it was included

6

in a list of names that never should be ever

7

included again in the system, just common sense.

8

Q:

Literally, that domain

9

A.

So,

That domain name, correct.

10

And after that, it would be scored

11

against a USPTO database and they would match the

12

terms in the USPTO database with the domain name.

13

That would come in a spreadsheet in the morning

14

and that would be vetted against, you know, always

15

two, sometimes three people, and then the names

-

16

would be registered at Go Daddy, at the

17

godaddy.com registrar .

18
19

20
21
22
23

Q.

. Okay.

So this would have been prior

to becoming a Basic Fusion registrar?
A.

Well, we had been a registrar for a

while, but prior to using the registrar.
Q.

Right, having the software in order

to make it happen?

24

A.

Correct, yes.

25

Q.

Okay.

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And the USPTO database that

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(Exhibit 128 is received and marked

1

2
3

9/15/2010

for identification.)
Okay.

Q.

So let's say that there was

4

DNS error data that said a number of people were

5

typing in Kide Rock, K-I-D-E-R-O-C-K.com, and,

6

therefore, it became subject to the vetting

7

process, back in 2005, what would be that vetting

8

process?

9

A.

This. would be run against the USPTO

10

database.

If it was not a previously registered

11

or previously qualified domain name, it would

12

have -- I'm sorry, if it was not previously looked

13

at and excluded, it would have gone through that

14

list and it would have gone through a blacklist.

15

So, for example, if Rock, R-O-C-K, was listed in

16

the blacklist, it would have shown as a blacklist

17

term that, you know, this is not a name that

18

should be registered unless it's been looked at

19

carefully.

20

look at the domain name to determine, sort of, on

21

a human basis, whether or not it could be

22

registered or not.

.

23

Q.

And. then a human review process would

Okay.

And so there's these three

24

components that you've. now indicated a couple of

25

times.

One is that it wasn't previously added as

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a Do Not Register.

2

there a name for that list, a Do Not Register

3

list?

4

A.

Is there a term for that or is

I don't know, but it's hundreds and

5

hundreds of thousands of domain names long.

6

It's -- I think it's probably -- I don't think we

7

have a name for it.

8

called the exclude list r maybe.

I

think it's probably just

9

Q.

Exclude list?

10

A.

Yeah r previously-excluded list.

But r

11

yeah, it's hundreds of thousands of domain names

12

long, or many hundreds of thousands.

13
14
15

Q.

of thousands of names long
A.

Q.

18

19
20

It's grown -(Interruption by the Reporter.)

16
17

In 2005, would it have been hundreds

One at a time.
In 2005, would it have been hundreds

of thousands of names long?
A.

No

well, I

--

so, let me just give

21

you an example of how it's grown.

22

certain number of domain names are excluded, so it

23

grows linearly.

24

time we started excluding names until now.

25

today the list is more -- I'm guessing here, but

Every day, a

It's a linear growth from the

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So if

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let's just say it's a half million names long, or

2

400,000 names long, back in 2005, it was probably,

3

I don't know, 50,000 names long.

4

sure, but it's a linear growth, of course, because

5

over time, more and more names get added to the

6

9/15/2010

list.

7
8

Q.

Okay.

I can't say for

Let's tell the jury, how does

a name, ln 2005, end up on the exclude list?

9

A.

Again

10

Q.

Is it a threat letter?

11

A.

No, no, no, again, it's a domain name

12

that, you know, any time before, the trademark

13

vetting process said, this domain name is not

14

eligible, put it on that list.

15
16

17

Q.

Okay.

So let's talk about how that

might occur.
A.

Okay, so let me give you a very

18

simple example.

Let's say that cup. com, while it

19

would never be included in that list, went through

20

a vetting process and we said, we cannot register

21

cup. com, because from a trademark perspective, it

22

violates someone's trademark, remove it.

23

cup. com name will go into a masterlist of names

24

that every day previous to the -- prior to the

25

list of names actually coming to an operator or

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That

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coming through the process, would be excluded.

2

It's -- you know, it works in two ways, if you

3

think about it.

4

twice?

5

this is not a name that's eligible to be

6

registered, so we wouldn't want to ever look at it

7

again, so it's added to that list and it never

8

comes up again as an eligible name for

9

registration.

10

Q.

Why would we repeat our work

We've already excluded cup. com and said,

Okay.

So let me ask it this way:

Is

11

one way that something can end up on the exclude

12

list is because you get a threat letter from a

13

company or attorney saying, we've got trademark

14

rights?

15

A.

Yeah, that's another way it would end

16

up on the exclude list as well, so, yes, yes,

17

that's exactly how it would end up, but the

18

majority, of course, the majority of domain names

19

in that list, the vast majority, are names that

20

were excluded manually from our trademark process.

21

Q.

Okay.

So the vast majority of

22

domains on that list would have been added as a

23

result of your own vetting process --

24

A.

Yes.

25

Q.

-- and your own flagging process

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A.

Correct, yeah.

2

Q.

Okay.

9/15/2010

3
4

Who do you recall as being the

operators back in 2005?
A.

So, one of the operators would

5

probably be Mavi Llamas, who currently is still

6

with the firm.

7

Q.

And could you spell that for us?

8

A.

M-A-V-I.

9

10
11

Llamas is L-L-A-M-A-S.

The other employees at the time, I
don't remember their names.
Q.

Do you think that the other people

12

who were there in 2005 are no longer with the

13

company?

14

A.

Say that again.

15

Q.

Do you believe the other people are

16
17
18
19

no longer with the company?
A.

Categorically, they're not with the

company, yeah.
Q.

Okay.

So the first step is

in

20

this trademark review process, is to see if the

21

domain had already been added to the exclude list?

22

A.

That was

23

Q.

Okay.

24

25

a part of the process, yes.

And that would have been done

by one of these operators?

A.

Uh-huh.

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Q.

Yes?

2

A.

Yes.

3

Q.

Okay.

9/15/2010

4

The second item is that there

would have been a blacklist?

5

A.

Right.

6

Q.

Let's talk a little bit about what

7

this blacklist is and how it was generated.

8

9

What is the blacklist?

A.

·The blacklist is slightly different.

10

It included domain names where -- not just domain

11

names, but terms and domain names where either we

12

believe -- we know we wanted to exclude, so, you

13

know, certain terms we're going to exclude, and

14

also whether it be profane or whatever, and other

15

terms where we had received notice that, you know,

16

please don't -- you know, be careful of what

17

you're doing here and stay away from any domain

18

name that includes something like this, and we

19

would add that to the blacklist as part of our

20

process.

21

Q.

Okay.

And as I understood from

22

Misino, the blacklist was more related to words

23

where you had received some form of third-party

24

notice of trademark rights; is that fair?

25

A.

More or less, yes.

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Yeah, there were

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is -- I don't want to use this domain name,

2

because I think it's a poor example, but

3

mcdonalds.com, we all know is the website of a

4

well-known restaurant.

5

blacklist, M-C-D-O would be on the blacklist.

6

kind of generate terms that may be included within

7

that includes, and also we may think are common

8

interpretations of that particular term.

9

blacklist, though, the fuzzy matching that you're

McDonald's would be on the
We

In the

10

talking about, that's more of an automated fuzzy

11

match system, was against the USPTO database, not

12

the blacklist database.

13

Q.

14
15

16
17

Fair enough.
And when did that fuzzy matching on

the trademark database corne into place?
A.

That was after Donnie started to

develop our registration .
. 2007 sometime?

18

Q.

19

A.

Yes, sometime in 2007.

20

Q.

Okay.

Now, the third step, let's

21

just assume the domain is not on the exclude list,

22

it's not on the blacklist, then there's this human

23

review process, so let's talk about the human

24

review process in 2005.

25

A.

Okay.

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blacklist, on the exclude list, which we talked

2

about before, never even made it into the tasting

3

9/15/2010

period, okay?

4

Q.

Right.

5

A.

So names that were in the tasting

6

period, and which had qualified, would then be

7

matched against the blacklist, which we previously

8

spoke about, and through the USPTO database.

9

Now, during this period of time,

10

there were iterations to that USPTO matching

11

service which enhanced our ability to actually

12

look at trademarks more closely against the USPTO,

13

and that was sort of a major change in the

14

trademark part of the whole registration,

15

monetization process.

16

Q.

Okay.

And so the add grace period,

17

one of the things that changed is, as long as it

18

wasn't on the exclude list and it met your other

19

thresholds, it would be registered immediately,

20

prior to human review?

21

A.

Yes.

22

Q.

And then in that four-and-a-half-day

23

period, the human review process would come into

24

play?

25

A.

Yes.

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somewhere in the 300 mark or so.

Q.

And I understand that part of the

3

reason that the portfolio has probably atrophied

4

is because it's harder and harder to make money

5

off of a landing -- a lander page because of

6

changes upstream with Yahoo?

7

A.

That's one of the elements.

8

Q.

That's one of the elements, right.

9

10
11

And what are some of the other elements as to why
the portfolio has reduced?

A.

Well, we got rid of a lot of domain

12

names that we felt we shouldn't have in the

13

portfolio, so we cleaned the portfolio.

14

Q.

15

right?

16

A.

And "cleaned" from a trademark sense,

Yes.

And we -- and also just being

17

able to taste the domain names, it's a lot easier

18

to find good domain names.

19

mathematically, your number of ads is always

20

greater than your number of deletes, because it

21

was sort of easier to find good names, and today

22

it's not as easy to find good names because you

23

don't have as much data.

24
25

So if you just look at

The number of names registered is
less than the number of names you delete at the

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portfolio, but I want to ask you a little bit

2

9/15/2010

about that.

3

A.

Sure.

4

Q.

I think what he discussed too was, it

5

was discussed through the years, but it was a hard

6

thing to do?

7

A.

No, we definitely did it.

8

Q.

You definitely did it.

9

A.

Yes, we built a tool, a software and

Okay.

10

we actually

we stopped everything and had

11

everyone focus on identifying domain names that

12

were problematic, and they were disposed of.

(

13

Q.

Okay.

When would that have been?

14

A.

I'd have to look back, you know, at a

15

calendar and try and put my hat around the date,

16

but I would say it probably was, you know -- when

17

was Verizon?

18

Q.

2008, early.

19

A.

Probably sometime in 2008.

20
21

I can't

say for sure.
Q.

Okay.

But probably, to the best of

22

your recollection, sometime in 2008, there would

23

have been a decision to go back to the domains

24

that you had already registered

25

A.

Yes.

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-- and take a trademark look at those

Q.
domains?

3

A.

Yes.

4

Q.

And I understand that your process

5

before that was to take a look at that issue

6

either ahead of time or during the add grace

7

period when that was in process t but now you're

8

making this shift and saYt okaYt we're going to go

9

back and look at what we've got?

10

So what we did iS t we looked back at

A.

11

our process and said it's good, but it's not good

12

enough, so let's go back and go through our whole

13

portfolio and identify domain names that we should

14

have known.
And we stopped everything.

15

We did

16

that.

17

I thinkt around the same time.

18

a transition and said more resources on the front

19

end t of making sure that no trademark names

20

slipped through the cracks, and at the same time,

21

let's go through and make sure we clean out

22

everything that did slip through the cracks, and

23

wet you know, disposed of a significant amount of

24

margin and revenue to the business.

25

Q.

We improved our trademark vetting process,

Okay.

Westlaw Deposition Services

So I guess we made

Let's talk about what was the

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2

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-- and take a trademark look at those

Q.
domains?

3

A.

Yes.

4

Q.

And I understand that your process

5

before that was to take a look at that issue

6

either ahead of time or during the add grace

7

period when that was in process, but now you're

8

making this shift and say, okay, we're going to go

9

back and look at what we've got?

10

So what we did is, we looked back at

A.

11

our process and said it's good, but it's not good

12

enough, so let's go back and go through our whole

13

portfolio and identify domain names that we should

14

have known.
And we stopped everything.

15

We did

16

that.

17

I think, around the same time.

18

a transition and said more resources on the front

19

end, of making sure that no trademark names

20

slipped through the cracks, and at the same time,

21

let's go through and make sure we clean out

22

everything that did slip through the cracks, and

23

we, you know, disposed of a significant amount of

24

margin and revenue to the business.

25

Q.

We improved our trademark vetting process,

Okay.

Westlaw Deposition Services

So I guess we made

Let's talk about what was the

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process for cleansing the portfolio.
A.

Well, we created a piece of software

3

that actually took every single domain name.

You

4

know, I wouldn't say it was the most sophisticated

5

piece of software on earth, but it was -- you

6

know, it took all the domain names in.

7

ran it against the USPTO database.

8

operator to see where there were matches very

9

similar to the vetting process.

Again, it

It allowed the

They made a

10

pretty similar decision as they made before, and

11

they would score the domain name based on sort of

12

where they thought the domain name's risk level

13

was, but not necessarily risk level, but

14

interference level, I guess.

15

Q.

Okay.

And who would have been

16

involved in designing that piece of software;

17

would it have been Misino?

18

A.

Misino was the engineer, yes, and

19

that was with conversations with me and Matt Rock

20

and Misino.

21

Q.

Okay.

Was it similar to what you

22

were doing on the front end, except you kind of

23

carved out that logic and put it into software

24

that would actually look at your current

25

portfolio?

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surprised it's delivered weather advertisements

2

you're asking me one domain name out of

3

time l 800 1 000.

4

9/15/2010

being delivered on that page ..

6

at a

I don't know exactly what ads are

VIDEOGRAPHER:

5

l

I

Counsell I need to

change the tape.

7

MR. SCHAEFER:

Sure.

8

VIDEOGRAPHER:

This marks the end of

9
10

Tape 3 in the videotape deposition of Seth Jacoby.
The time is 2:51 p.m. on September 151 2010.

11

(Recess. )

12

VIDEOGRAPHER:

This marks the

13

beginning of Videotape No. 4 in the videotape

14

deposition of Seth Jacoby.

15

on September 151 2010.

16
17

18

The time is 2:59 p.m.

You may proceed.
BY MR. SCHAEFER:
Q.

Okay.

This process by which you went

19

back and looked at your portfolio l againl for

20

trademark issues in we think 2008 1 I know there

21

was software.

22

that process l how did that work?

23

A.

Tell me about the human side of

The process was not unlike the

24

initial registration process.

25

at the names against the USPTO database.

Westlaw Deposition Services

The user would look
I think

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1

that we -- I can't remember, but I think that we

2

also took, like, a catalog of common -- I don't

3

remember.

4

There was some other type of list

5

that we included in the review process.

6

general, it was a very human-touch process.

7

would flow through this piece of software.

8

software would identify where there was a match to

-9

the USPTO specifically.

10

But, in
Names
The

The user would make a

judgment call whether that was good or bad.

11

I think that actually after that

12

process, it went through a second-level review,

13

and that second-level review kind of vetted

14

exclusions, I guess.

15

think, it was a first-level review, humans sort of

16

graded the domain name, and then it went to the

17

third level -- or the second level, where the

18

grader would grade it.

19

Q.

Okay.

If I recall, it sort of -- I

And who did this?

I take it,

20

the first-level review was with the operators, the

21

same folks who do that as part of their core

22

business?

23

A.

Yes.

24

Q.

Who were the second-level reviewers?

25

A.

I believe one of the core

Westlaw Deposition Services

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Page 192

334
C E R T I

1

2

II

ELIZABETH M.

F I

CAT E

KONDOR,

a Certified Court

3

Reporter,

No.

30XIOOl17200,

Certified LiveNote

4

Reporter,

No.

060907-14 and

Not~ry

5

he~eby

6

the examination,

7

to testify the truth,

8

but the truth.

9

Public, do

certify that prior to the commencement of
SETH JACOBY was duly sworn by me
the whole truth and nothing

I DO FURTHER CERTIFY that the foregoing

10
11

as taken stenographically by and before me at the

12

(

is a true and accurate transcript of the testimony

time,

13

forth.

place and on the date hereinbefore set

14

I DO FURTHER CERTIFY that I

am neither a

15

relative nor employee nQr attorney nor counsel of

16

any of the parties to this action,

17

neither a relative nor employee of such attorney

18

or counsel,

19

interested in the action.

20

and that I am not financially

21

'lt£Z.
~

22

Notary Public of the State

23

(

and that I am

My Commission expires June 6,

.

. . ," .. :.....

-' ....

.

.,;.

,-

. i' ". •,

:.!.... """"'

....

24
25

Dated:

TuesdaYI

September 21,

2010

2015.