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

Filing 225

MOTION for Reconsideration re 222 Order on Motion for Summary Judgment, Order on Motion for Order,, by Weather Underground, Incorporated. (Attachments: # 1 Exhibit A) (Schaefer, Enrico)

Motion Hearing - September 15, 2011

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
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THE WEATHER UNDERGROUND, INC.,
a Michigan corporation,

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Plaintiff,

Case No. 09-10756

vs.
NAVIGATION CATALYST SYSTEMS,
INC., a Delaware corporation;
BASIC FUSION, INC., a Delaware
corporation; CONNEXUS CORP., a
Delaware corporation; and
FIRSTLOOK, INC., a Delaware
corporation,

Hon. Marianne O. Battani

Defendants.
_______________________________/
MOTION HEARING
BEFORE THE HONORABLE MARIANNE O. BATTANI
United States District Judge
Theodore Levin United States Courthouse
231 West Lafayette Boulevard
Detroit, Michigan
Thursday, September 15, 2011
APPEARANCES:
For the Plaintiff:

ANTHONY P. PATTI
Hooper Hathaway, P.C.
126 South Main Street
Ann Arbor, MI 48104
[phone]
C. ENRICO SCHAEFER
MARK G. CLARK
Traverse Legal, P.L.C.
810 Cottage View Drive, Ste. G20
Traverse City, MI 49684
[phone]

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The Weather Underground vs. NCS, Inc., et al. - 09-10756

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Motion Hearing - September 15, 2011

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names to trademarks in the U.S. PTO database.

The

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alternative system that Mr. Schwerzler put in place compares

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our domain names to other domain names that happen to exist

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on the Internet.

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they may or -- quite honestly, I think he got them because

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they were highly trafficked but they may or may not be

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comprised of generic words.

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delta.com, that's an example that Mr. Schwerzler gave earlier

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with respect to the first motion.

They may or may not be trademark protected,

So for example think about

Delta could refer to an

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airline, a faucet, I think there is a dental insurance

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company, it is a mathematical computation as the difference

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between two things.

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word delta in it to the trademark database is a much

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different exercise than just comparing it to a bunch of other

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domain names that also have the word delta in it because as

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it turns out I may be very well within my rights to register

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a domain name with the word delta in it so long as I'm not

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infringing on the rights of someone else, and that's a

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problem with his methodology that again it is not just a

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function of bias, it is the methodology in what he did that

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is problematic.

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is they could have selected somebody else to do all of these

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things and we wouldn't be here talking about these things,

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but they didn't.

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Comparing a domain name that has the

And, of course, what they don't talk about

THE COURT:

Let me say on the expert, I agree, this

The Weather Underground vs. NCS, Inc., et al. - 09-10756

Motion Hearing - September 15, 2011

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gentleman is way too far involved in this case -- in this

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business to be unbiassed which, of course, every expert has a

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certain bias or he wouldn't be selected as an expert, we all

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know this, but this person has a bias that is beyond the

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subject, it is an interest in the outcome of the case, and

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because he has an interest in the outcome of this case the

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Court is not going to allow him to testify as an expert.

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don't know what he's going to say as a fact witness, I'm not

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barring his testimony as a fact witness, but we'll have to

I

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deal with that at trial, his expert testimony.

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believe that this other development that he had, that he made

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this other program, would be an area of expertise because it

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didn't exist at the time that this went on, so therefore he

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could not be a fact witness as to the facts in the underlying

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case.

So we will see where we go with it at trial.

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MR. DELGADO:

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THE COURT:

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MR. DELGADO:

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I would

Thank you, Your Honor.
Okay.
My motion is coming up next.

I'm

just going to stay up here if you don't mind?

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THE COURT:

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MR. DELGADO:

Go ahead.
I think the last motion that we were

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talking about today is the Epic Media Group's motion for

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summary judgment as to all claims.

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Before I get into my three points with respect to
that motion let me just give the Court a 30-second reminder

The Weather Underground vs. NCS, Inc., et al. - 09-10756