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)

EXHIBIT S

\.0

l.(')

co

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN

.-

'" ._
E
o~
T"-I
> co
UU
1-

I

0'1

o

••

...

Vl

<lJ
<lJ

NO!

. c:

~«
UJ

Vl

6.9

THE WEATHER UNDERGROUND,
INC., A MICHIGAN CORPORATION,

CERTIFIED

COpy

PLAINTIFF,
CASE No. 2:09-CV10756

VS.
o
T"-I
o

N

c:i
I

•

0...

00'"
l-

<lJ

..c

u.:" u
~
~

~~
u.i >:
O~
~

«
I

Vl

NAVIGATION CATALYST SYSTEMS,
INC., A DELAWARE CORPORATION;
BASIC FUSION, INC., A DELAWARE
CORPORATION; CONNEXUS CORP.,
A DELAWARE CORPORATION; AND
FIRSTLOOK, INC., A DELAWARE
CORPORATION,
DEFENDANTS.

<lJ

c:
u"O
_
<lJ
~$

DEPOSITION OF
RICHARD E. KORF, PH.D.
Volume 1
Los Angeles, California
Wednesday, December 8, 2010

Confidential - Under Seal
Exhibits Bound Separately

)

Reported By:
Judy Samson
CSR No. 6916
NDS Job No. 140368

Confidential - Under Seal

1

possible, okay, the registration of

2

domain names which are trademarks

3

or confusingly similar to

4

registered or common law

5

trademarks. " )

6

BY MR. HALL:

7

Q

Why do you say "to the extent possible"?

01:40:29

8

A

It -- it can't be done with a hundred

01:40:31

9

01:40:36

percent accuracy.

10

Let me back up.

01:40:37

11

If you registered nothing, you could

01:40:38

12

achieve a hundred percent accuracy of never

01:40:40

13

registering something which is confusingly similar

01:40:42

14

to a trademark.

01:40:45

15

But given that you're going to be

01:40:46

16

registering some trademarks, this system -- or, in

01:40:48

17

fact, any system designed to do this -- is not going

01:40:51

18

to be a hundred percent accurate.

01:40:54

19

It's going to -- in some cases probably it

01:40:56

20

may register domain names which would be considered

01:40:59

21

confusingly similar to trademarks.

01:40:44

22

fail to register trademarks which will not be

01:41:07

23

confusingly similar to trademarks.

01:40:44

24
25

It probably will

So the goal of this system is not
something -- either as an automated system or a

01:41:11
01:41:13
133

Network Deposition Services, Inc .• networkdepo.com. 866-NET-DEPO

Confidential - Under Seal

1

manual system or a combination, there isn't a goal

01:41:17

2

here which can be achieved with a hundred percent

01:41:19

3

accuracy unless, of course, you were to simply not

01:41:21

4

register domains at all.

01:41:24

5
6

7

Q

So you're telling me that it's impossible

to register domain names in bulk without -A

If you're registering a large number of

01:41:26
01:41:30
01:41:41

8

domains, okay, I don't believe it would be possible,

01:41:44

9

okay, to have a system which registered a very large

01:41:49

10

number of -- of domain names, particularly in bulk,

01:41:53

11

and be guaranteed that none of those names would be

01:41:55

12

confusingly similar

13

confusingly similar to a trademark.

14
15

Q

might be determined to be

But certainly you would agree that domain

names can be registered without -- strike that.

16

You would agree that you can register a

01:40:44
01:40:44
01:42:05
01:42:09
01:42:13

17

domain name and ensure that it does not infringe the

01:42:16

18

trademark of another?

01: 42: 21

19

A

I think there would -- there could be

01:42:24

20

examples that one could construct of individual

01:42:26

21

domains where one could say with -- with a high

01:42:31

22

degree of certainty that this does not infringe a

01:42:33

23

trademark.

01:42:36

24

Q

25

And why can't that be extrapolated to

larger-scale domain registrations?

01:42:36
01:42:42
134

Network Deposition Services, Inc .• networkdepo.com • 866-NET-DEPO

Confidential - Under Seal

1

A

That's correct.

05:01:45

2

Q

So you're not offering any opinion as it

05:01:46

3

relates to prior versions of this system?

05:01:48

4

A

In general, no.

05:01:52

5

Q

Anything besides "in general"?

05:01:52

6

A

So I -- I've not been asked, nor have I

05:01:58

7

made it my business, to sort of investigate a

05:02:01

8

timeline of what the system looked like at various

05:02:05

9

stages.

05:02:09

I wasn't asked to do that.
It's a much more complex task.

10

It involves

05:02:12

11

determining, you know, all the different intervals

05:02:15

12

where significant changes were made.

05:02:17

13

effectively one would -- would mUltiply the volume

05:02:19

14

of this report by the number of the different

05:02:23

15

systems that were in place along the way.

05:02:25

And I've

16

And

in fact, I've specifically

05:02:27

17

I've -- I've not been asked to do that, and I have

05:02:32

18

not tried to determine an, you know, archaeology

05:02:34

19

here of what the history of this system has been.

05:02:37

20
21

22
23

I've been asked to focus on the current
system.

Q

05:02:40
05:02:42

The next sentence says:
"While no such system can

05:02:42
05:02:43

24

operate flawlessly ... "

05:02:45

25

What is your basis for that opinion?

05:02:47
283

Network Deposition Services, Inc. - networkdepo.com - 866-NET -DEPO

Confidential - Under Seal

1

A

The problem is hard.

And as I said

05:02:49

2

probably in the beginning this morning, is that if

05:02:52

3

you want to be in this business and you are going to

05:02:54

4

be registering domain names and if you're going to

05:02:58

5

be registering a significant number of them, the

05:03:01

6

problem of excluding matches which are confusingly

05:03:04

7

similar to trademarks is -- is not a trivial

05:03:09

8

problem, and it can't be reduced to a simple

05:03:14

9

algorithm that will always be correct because it

05:03:17

10

involves issues of context, it involves issues of

05:03:19

11

the meaning of words and the meaning of words in

05:03:23

12

different contexts.

05:03:26

13

And so the problem in some sense is just

05:03:27

14

too difficult to accomplish with a hundred percent

05:03:31

15

accuracy with the exception of simply not

05:03:35

16

registering anything.

05:03:39

So I don't register anything.

17
18

this business.

19

I'm not in

problem.

20

So I don't run afoul of this

05:03:40
05:03:42
05:03:46

But if one wants to be in this business and
to have a business of it and be

05:03:46

21

one wants to

22

profitable, this is -- this is an important task,

05:03:52

23

but it can't be accomplished with a hundred percent

05:03:55

24

accuracy.

05:04:00

25

Q

And you said right there "without

05:03:48

05:04:00
284

Network Deposition Services, Inc .• networkdepo.com. 866-NET-DEPO

Confidential - Under Seal

1

STATE OF CALIFORNIA
ss:

2

COUNTY OF LOS ANGELES

3

4

I, JUDY SAMSON, do hereby certify:

5

That I am a duly qualified Certified Shorthand

6

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

7

certificate number 6916, which is in full force and

8

effect and that I am authorized to administer oaths and

9

affirmations;

10

That the foregoing deposition testimony of the

11

herein named witness was taken before me at the time and

12

place herein set forth;

13

That prior to being examined, the witness named

14

in the foregoing deposition, was duly sworn or affirmed

15

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

16

nothing but the truth;

17

That the testimony of the witness and all

18

objections made at the time of the examination were

19

recorded stenographically by me, and were thereafter

20

transcribed under my direction and supervision;

21

That the foregoing pages contain a full,

true

22

and accurate record of the proceedings and testimony to

23

the best of my skill and ability;

24

25

That prior to the completion of the foregoing
deposition, review of the transcript was requested.
336
Network Deposition Services, Inc .• networkdepo.com • 866-NET-DEPO

Confidential- Under Seal

1

I further certify that I am not a relative or

2

employee or attorney or counsel of any of the parties,

3

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
7
8

IN WITNESS WHEREOF, I have subscribed my name
this 18th day of

December

2010

9

10
11
12

JUDY SAMSON, CSR No. 6916

13
14
15
16
17
18
19
20
21
22
23

24

25
337
Network Deposition Services, Inc .• networkdepo.com • 866-NET-DEPO