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

Filing 285

RESPONSE to 282 Emergency MOTION to Compel Production of Asset Transfer Documentation filed by Connexus Corporation, Firstlook, Incorporated, Navigation Catalyst Systems, Incorporated. (Attachments: # 1 Exhibit A) (Delgado, William)

EXHIBIT A

Page 1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN

THE WEATHER UNDERGROUND, INC., )
a Michigan Corporation,

)
)

Plaintiff,

)
)

vs.

) Case No. 2:09-CV-10756
)

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.

)

_______________________________)

VIDEOTAPED TRIAL DEPOSITION OF SETH JACOBY
New York, New York
Thursday, April 12, 2012

Reported by:

Jeremy Frank

NDS Job No.:

147647
1

Page 2
1

UNITED STATES DISTRICT COURT

2

EASTERN DISTRICT OF MICHIGAN

3
4
5
6

THE WEATHER UNDERGROUND, INC., )
a Michigan Corporation,

7

)

8

Plaintiff,

9
10

)
)
)

vs.

) Case No. 2:09-CV-10756

11

)

12

NAVIGATION CATALYST SYSTEMS,

)

13

INC., a Delaware corporation;

)

14

BASIC FUSION, INC., a Delaware )

15

corporation; CONNEXUS CORP., a )

16

Delaware corporation; and

)

17

FIRSTLOOK, INC., a Delaware

)

18

corporation,

)

19
20
21

)
Defendants.

)

_______________________________)

22
23
24

VIDEOTAPED TRIAL DEPOSITION OF SETH JACOBY,

25

held at Klein Zelman Rothermel, LLP, 485 Madison

26

Avenue, New York, New York, on Thursday, April

27

12, 2012, commencing at 9:06 a.m., before Jeremy

28

Frank, MPM and Notary Public.

29
30
31
32
33
34

2

Page 18
1

really work that way, some of the things that, some

2

of the things that Firstlook did were they, some of

3

the things that Firstlook did they were, that sort

4

of entity was doing earlier under Vendare, correct.

5

Q.

Okay.

6

A.

But not all of it, the business evolved.

7

Q.

So just so we are clear, if you will

8

take a look at deposition page 25, line 8.

9

MR. DELGADO:

10

Thank you.

(Jacoby deposition of 9/15/10, marked

11

for identification, as of this date.)

12

A.

I think I'm looking at the wrong page.

13

Q.

Page 25.

14

A.

The smaller pages?

15

Q.

Yes.

16

And at line eight the question starts:

17

"At the time that you came into the

18

company, what was Vendare Media Group doing,

19

generally, for business?"

20

Do you see that question?

21

A.

Yes, I do, on line eight.

22

Q.

And just so we are clear, the answer

23
24
25

was:
"Well, there was the New.net business,
which was registering domain names, and, you

Page 19
1

know, the searches, pretty much the same

2

thing the business is doing today -- which

3

the Firstlook business is doing today."

4
5

Is that a fair statement?
A.

Well, I think my point was is that yes,

6

the Firstlook business was doing that, was doing

7

that business, but the Firstlook business did a lot

8

more than that business.

9

Q.

Sure.

10

A.

So yes, that's fair.

11

I think what you're saying is that

12

exclusively that's what it was doing, and my point

13

is that the Firstlook business was carrying on much

14

of what the New.net business was doing, but it did a

15

lot more.

16

Q.

Right.

17

A.

Okay.

18

Q.

There were other parts of the business

19

besides registering and monetizing domain names?

20

A.

That was my point, correct.

21

Q.

For today we are going to be talking

22

mostly about the registration and monetization

23

domain names, that part of the business.

24

A.

That's fair.

25

Q.

By monetizing domain names so that we

Page 37
1

DNS error, yes.

2

Q.

And when no one has registered that

3

particular domain, that's a potential opportunity

4

for you to register it and put up a lander page,

5

correct?

6

A.

You mean the company?

7

Q.

The company.

8

A.

Yes.

9

Q.

Okay.

10

And then to put advertisements on the

11

lander page that people might click that might

12

generate revenue and profits to the company?

13

A.

Sure.

14

Q.

Okay.

15
16

One of the things that qualifies in your
company's world as DNS error data --

17

A.

Yes.

18

Q.

-- is when someone mistypes a domain

19

name of a real website that they're looking for,

20

correct?

21

A.

Say that again.

22

Q.

When someone mistypes a domain --

23

A.

Can you qualify that.

24

Q.

If you will go to your deposition on

25

page 61, line 14, I'm using your language here.

Page 38
1

A.

Okay.

2

Q.

Let's make sure we are talking about the

3

same thing.

Line 14, I had asked a question about

4

something a little bit different.

5

It says:

"Okay.

And so that link

6

traffic might be if someone who is putting

7

the tag on for the link mistypes the

8

destination URL?"

9

Your answer is:

"I don't know if

10

necessarily mistypes, but maybe doesn't have

11

the right URL there or what they were -- you

12

know, there is a number of reasons why that

13

link could be wrong.

14

only one, but it could be a reason."

15

So tell me about this mistyping

16

Mistyping is not the

phenomenon that you're referring to here.

17

A.

I can't remember exactly what I was

18

referring to.

19

pages to see what led up to this or what came after

20

it?

21

Q.

22

of how --

23

A.

Do you want me to read a bunch of

If you don't have a recollection today

My point is that mistyping is a number

24

of different things.

You could put an illegal

25

character in the search bar and it wouldn't resolve,

Page 39
1

you could make a space between the period and a dot,

2

you know, there is an infinite number of ways that

3

you could actually deliver a DNS error.

4
5

Q.

One of the ways that people are typing a

domain that they mistype it?

6

A.

Sure, yes.

7

Q.

And that would result in a DNS error

8

because there is no, it wasn't registered, that

9

typo?

10

A.

Incorrect, no.

11

Q.

Incorrect?

12

A.

Yes.

13
14

Because not every mistype in error is a
domain name, that's my point.

15

Q.

Okay.

16

A.

There is an infinite number of ways that

17

you will have a DNS error.

One of them, one

18

singular instance is if a domain name which is

19

correctly formed is not registered, I think that's

20

what you're getting at.

21

Q.

Sure.

22

A.

My point simply is there is a million

23
24
25

different ways to deliver errors, DNS errors.
Q.

I think we are in agreement.
One example of an DNS error is when

Page 50
1

A.

2

In some cases.
There is 90 million domain names

3

registered so or something like that, its a huge

4

number, not every domain name registered certainly

5

is a registered trademark, but --

6

Q.

7
8

Okay.
Let's just make sure we are clear, let's

go to page 65 of the deposition.

9

A.

Sure.

10

Q.

Line nine.

11

A.

65, line 9.

12

Q.

Let's start with line four, review line

13

four and that's where the context is.

14

A.

15
16

Sure.
E-mails about typographical errors, am I

reading the right page?

17

Q.

Yes, we are talking about typographical

18

errors.

19

answer, well, let's start with line 13.

20

And then down to line 17 as part of your

You say:

"I'm sure that shows up in the

21

normal course of business, because, you know,

22

as part of a vetting process of trying to

23

figure out which domain names should be kept

24

and which domain names shouldn't be kept, a

25

qualification for a domain name that should

Page 51
1

be excluded is clearly, you know, a domain

2

name that might be a typo of a website."

3

A.

Sure.

4

Q.

Okay.

5

And so just to be clear, you understood

6

that typos of websites might also be problematic

7

even if they weren't in a trademark registration

8

database?

9

A.

10

before, but sure.

11

Q.

12

Sure, but that's not what I was saying

Okay.
Now, as I understand your prior

13

testimony, you believe that even as of 2005 there

14

were human beings at defendant companies who were

15

reviewing DNS error data for trademarks; is that

16

correct?

17
18
19
20

You had believed, you started
April 2005, that's why -A.

Look at the data or look at the

qualified domain names?

21

Q.

Looking at qualified domain names.

22

A.

Okay, the answer is yes.

23

Q.

As to say not all the data --

24

A.

Correct.

25

Q.

-- found into the bucket of when you

Page 54
1

A.

That's fair to say.

2

Q.

Okay.

3

And as far as you were aware did any of

4

them have any trademark experience prior to joining

5

your companies to do human review?

6

A.

I don't believe so.

7

Q.

Did you have an attorney in 2005

8

participating in trademark review?

9

A.

I don't believe so.

10

Q.

As I understand it, you didn't provide

11

these human reviewers any sort of training in terms

12

of trademark law or trademark issues prior to

13

turning them loose to do review?

14

A.

Formal trademark training?

15

Q.

Yes.

16

A.

From a qualified sort of trademark

17
18
19

attorney, I guess the answer is no.
Q.

Did you provide them any formal training

at all for anyone with regards to trademark review?

20

A.

Sure, yes.

21

Q.

Let's take a look at your deposition,

22

page 91, line 6.

23

A.

Yes.

24

Q.

Here we are talking about the 2005

25

period, there is this blacklist that we have

Page 55
1

discussed.

2

A.

Yes.

3

Q.

And I ask:

4

"What else would they do, if anything,

5

to take a look at the trademark risk issue?"

6

A.

Just where are you?

7

Q.

9 and 10.

8

A.

Yes.

9

Q.

You said:

10

"That's what they do would do.

I mean,

11

it's a -- they would -- it was an art.

12

know, they looked at the domain name, you

13

know, they compared it to the U.S. PTO

14

matches, and that's more or less what they

15

did."

16

Q.

And we have talked about that, correct?

17

A.

Yes, I'm surprised I really talk like

18
19

You

that, but yes.
Q.

Okay.

20

Now, then I went on line 16:

21

"Now, was there -- what was the training

22

that they received in terms of the trademark

23

review process in 2005?"

24

And your answer is:

25

"You know, it

wasn't a formal training process, per se."

Page 56
1

A.

Correct.

2

Q.

Is that to your recollection still true?

3

A.

Yes.

4

That's what I said, there was no formal

5

training from a trademark professional, but of

6

course anybody who walks into their first day on the

7

job has some sort of training or they wouldn't know

8

what to do.

9

Q.

To your knowledge these people weren't

10

provided any sort of trademark law materials or

11

training, correct?

12

A.

I don't believe so.

13

Q.

Was anyone with trademark experience

14

reviewing domain names for trademarks in 2005?

15

A.

I don't believe so.

16

Q.

What I'm trying to understand is if one

17

of the things that you say your company was trying

18

to do prior to registration was to reduce the risk

19

that you might be infringing someone's trademark,

20

why wouldn't you hire someone who understood what

21

trademarks were and how trademark law worked?

22

A.

It's a good question, I don't know.

23

Q.

Certainly if you had wanted to, if the

24

company had wanted to, and maybe it would have cost

25

a little bit more money, but you could have hired an

Page 61
1
2
3
4

that true?
A.

Correct, yes, I believe that's correct,

I think so.
Q.

5

Okay.
Let's go to page 105 of your deposition.

6

A.

Yes.

7

Q.

Your recollection may have been a little

8

bit better in 2010, I understand you have moved on.

9

Let's go to line 16.

Here we talk about whether or

10

not human reviewers in 2005 did any internet

11

research to determine whether or not there might be

12

a domain name that is close to the one that you're

13

contemplating registering a letter off, two letters

14

off that might have trademark rights?

15

A.

Yes.

16

Q.

And I am asking you did they do that.

17

And then on page 106, line 1, you say no.

18

Does that refresh your recollection?

19

A.

Yes, sounds right.

20

Q.

Why didn't you have the human reviewers

21

do a simple internet research to see if there might

22

be problematic websites out there before registering

23

domain names?

24
25

A.

I can't speculate on why I didn't do

that; I'm a bad manager.

Page 65
1

not a human reviewer was personally aware of a major

2

brand as part of the vetting process?

3

A.

I think that's a strange characteri-

4

zation, I don't know if I would necessarily say

5

that.

6

Q.

Okay.

7

With regards to your prior testimony, we

8

talked about a couple of typographical variations of

9

some domain names.

10

One of them was the Detroit Red

Wings.

11

Do you recall that?

12

A.

Vague, but I do think I remember that.

13

Q.

And I asked you whether or not you had

14

heard of them, you didn't really have any knowledge

15

of them.

16

of the Red Wings.

17

A.

Yes.

18

Q.

You thought well, I don't recognize

I showed you a variation of a domain name

19

that, so from my point of view, it is okay to

20

register?

21

A.

22
23
24
25

I don't recall, but if you want to go

through this again, I would be happy to do that.
Q.

Okay.
Let's take a look at, let's go to page

129 of your deposition.

Page 66
1

A.

Here we are.

2

Q.

And in this section, you can take a

3

minute, and we are done, I'm done here taking a look

4

at this.

5

A.

Yes.

6

Q.

We are talking about a domain name that

7

was my client's full trademark Wunderground with the

8

addition of the letter Q in front of it,

9

QWunderground.com.

And I asked you whether or not

10

that is a domain name that in fact incorporates my

11

client's trademark.

12

to assume that.

13

You didn't know, so I asked you

Assume for the purposes of my questions

14

today that my client has a longstanding trademark

15

for Wunderground.com.

16

A.

You want me to read this now?

17

Q.

Take a second to read, there is a whole

18

section here, 129 and 130.

19

A.

Give me a minute, okay.

20

Q.

We have a little back and forth about it

21

and initially you thought, well our system would not

22

have flagged that, but then later on you agreed

23

since it incorporated the entire trademark

24

Wunderground that your system even back in 2005

25

should have flagged that trademark, correct, because

Page 72
1

he was.

2

Q.

3

you indicated --

4

A.

5

Do you think it is funny that Pitney,

No, I said you were stretching an

example.

6

Q.

But you had indicated because it

7

included, you said Pitney Bowes did not include any

8

dictionary words, and in fact it, you would agree it

9

does?

10

A.

I think any reasonable person would take

11

the word Pitney Bowes and say that just really just

12

means Pitney Bowes.

13

would look at QWunderground and say wow underground

14

is a pretty massive part of that combination of

15

letters, yes.

16

Q.

I think any reasonable person

So your test back in the day was if

17

there was a dictionary word that was primary in the

18

URL, then from your point of view irrespective of

19

whether or not there were registered trademarks it

20

was okay to register in general?

21

A.

I never said that.

22

Q.

As we go on to page 133 on the bottom I

23
24
25

ask, line 24:
"Okay.

So the test is whether or not

(you two or whether) your two or so sponsors

Page 73
1

would have actually personally heard of the

2

website?"

3

And you answered that:

"That is part of

4

the test, yes.

5

common sense.

6

Wunderground which incorporates generic terms

7

and it doesn't mean a whole lot, and that's--

8

I think that's a qualification for

9

registration."

10

I mean, I think it just uses
There's a name like

Do you see that testimony?

11

A.

12

page are we on?

13

Q.

14

question, okay --

15

A.

I got it, got it.

16

Q.

Yes.

17

Go back to, I actually lost you, what

133 at the bottom, line 24.

My

So the test is whether or not your two

18

or so operators, reviewers, would have, actually

19

have personally heard of the website.

20

answer is, "That's part of the test, yes."

21

talk about common sense and whether or not the word

22

incorporates a generic term.

23
24
25

A.

And the
Then you

Right, exactly.
My common sense argument is

Wunderground, there is one letter in front of

Page 76
1

A.

Sure.

2

Q.

And even as of the time of the

3

deposition you believed that you would have

4

registered it again if in fact that domain came

5

across the wire?

6

A.

Did I say that?

7

Q.

Do you recall whether or not you said

9

A.

I have no idea.

10

Q.

Would you today believe that it was okay

8

11
12

that?

to register QWunderground.com as a domain name?
A.

I'm not in that business and I don't

13

really care so I wouldn't make a determination

14

whether or not I would register it.

15

Q.

As of the last day of your employment

16

with Firstlook.

17

A.

I can't speculate on my last day of

18

employment with Firstlook what I would have been

19

thinking.

20

Q.

21

Let's go to your deposition and take a

look at page 160, line 18, and --

22

A.

160, I'm sorry.

23

Q.

160 line 18.

24

This is the precursor section with your

25

saying you think the system worked correctly and it

Page 77
1

was appropriate to register QWunderground.com at the

2

time of registration.

3

A.

That's what I said then, yes.

4

Q.

Okay.

5

Let's go to page 142.

6

A.

Yes.

7

Q.

On line 16 I say:

8
9

"Okay.

And today do you believe that

it's not an issue?"

10

Your answer is:

(Sitting here today or)

11

"Sitting here in this room today I can see

12

where your client would say, look, this

13

domain name incorporates our trademark, and

14

in the instance that they contacted us and

15

said, hey, this is the problem, we would have

16

said, you know what, we see your point, and

17

handed it over, which we offered without

18

issue, without a problem."

19

Do you see that testimony?

20

A.

I see that, yes.

21

Q.

So as of 2010 your position at the time

22

of your deposition was that you understood that

23

there may be a trademark infringement issue here and

24

you would have offered and in fact did offer to

25

simply give back the domain?

Page 84
1

MO

2

MR. SCHAEFER:

3

that as nonresponsive.

4

Q.

I would have move strike

You agree that part of the traffic you

5

were receiving in all likelihood, using common sense

6

was people look for my client's website?

7

MR. DELGADO:

Same objection.

8

A.

Yes.

9

Q.

Did you ever seek permission from the

10

plaintiff Weather Underground to use their trademark

11

in any way?

12

A.

No.

13

Q.

At your deposition, I want to go back

14

and talk a little about the Detroit Red Wings.

15

understand you're not a hockey fan.

16

A.

That's definitely true.

17

Q.

I

Okay.

18

But at your deposition you actually

19

suggested that you really had never heard of the

20

Detroit Red Wings.

21
22
23

Was that true at the time of your
deposition?
A.

I don't remember in context what we are

24

talking about, but again I'm not a hockey fan.

I

25

could tell you a couple of that you know, I live in

Page 85
1

a town where the New York Rangers play, that's for

2

sure.

3

Q.

Do you understand that one of the teams

4

that the Rangers play is one of the original six

5

teams, the Detroit Red Wings?

6

A.

You're asking the wrong guy about sports

7

history.

8

not taking my kid to play sports or to games.

9

It is one thing my wife yells at me about

Q.

Would it surprise you in your portfolio

10

of domain names there was registration of variations

11

of the Red Wings brand?

12

A.

I have no idea.

13

Q.

You also indicated that you had never

14

heard of Henry Ford Hospital at the time of the

15

deposition.

16

Was that testimony true?

17

A.

That's correct.

18

Q.

Would it surprise you if your company

19

had registered typographical variation of Henry Ford

20

Hospital and monetized them?

21

A.

I have no idea.

22

Q.

At your deposition you had indicated

23

that you had never heard of Auto Owners Insurance,

24

was that testimony true?

25

A.

That's certainly true.

Page 86
1

Q.

Would it surprise you if your company

2

had registered and monetized typo variations of Auto

3

Owners' trademarks?

4

A.

I have no idea.

5

Q.

We talked a little about the receipt of

6

trademark letters and UDRP.

7

about letters that your company would have received

8

from trademark owners saying hey, you're violating

9

our trademarks and you're violating the ACPA.

10

I want to talk a little

What was the process at Firstlook for

11

handling just the intake of those letters?

12

those come through your office, where did those

13

letters come into?

14

A.

Did

If I recall they went to, I mean I think

15

we had some modifications, I'm not sure, again the

16

process sort of changed from 2005 through whatever,

17

2010.

18

Chris Pirrone or I think more likely it went to a

19

clerk, a clerk that worked for the team that managed

20

the intake of those letters and notices.

21

But it either went to an attorney's desk like

Q.

22

Okay.
Would you have typically in say 2006

23

received notice that someone had made a trademark

24

infringement claim?

25

A.

Me personally?

Page 89
1

and our domain name, we decided that that was not a

2

domain name we would handle over.

3
4

Q.

Let's go to page 115 of the deposition,

line 11.

5

A.

Yes.

6

Q.

And through line 116 you're suggesting

7

now that you weren't turning over domain names

8

because you were infringing trademarks, but just as

9

a matter of good internet citizenship.

10
11

Do you recall at your deposition the
following question:

12

"Okay, but those decisions are made at

13

legal, in terms of third-party threat

14

letters, not by you guys?"

15

Answer:

"No, we made the decision that

16

legal should hand over domain names that,

17

through their legal advice, infringed on

18

third parties."

19

Do you recall that testimony?

20

A.

Sure, yes.

21

Q.

Was that testimony true?

22

A.

Yes, that's what I just said.

23

Q.

What you just said was that you were

24

doing it because you were being a good internet

25

citizen.

Page 94
1
2

A.

Gosh, I have no idea what kind of

thresholds we were thinking about in 2005.

3

Q.

If you go to page 93 of your deposition.

4

A.

Yes.

5

Q.

Line 10.

6

Question:

"Did you have some sort of

7

threshold for them (human reviewers) in 2005

8

in terms of how close is close?"

9

Answer:

"There is no formal threshold,

10

no."

11

A.

Okay.

12

Q.

Do you believe that testimony was

13

accurate?

14

A.

Yes, I mean it sounds probably accurate.

15

Q.

As the president of Firstlook whose job

16

it was to not violate third-party trademarks --

17

A.

Yes.

18

Q.

-- how is it that you were tracking the

19

performance of these human reviewers to see if they

20

were doing a good job?

21
22
23

A.

I have absolutely no recollection of how

we were doing that, if at all.
Q.

Do you have any idea what was in these

24

human reviewers' heads as they were going through

25

the process of determining --

Page 95
1
2
3

A.

If you expect me to think what is going

in a human reviewer's head, I'm not Superman.
Q.

Well, I know, but a lot of companies

4

they'll provide, they'll provide a structure for an

5

employee to make decisions, correct, you're

6

certainly familiar with that process?

7

MR. DELGADO:

Objection to the extent it

8

calls for speculation as to what other

9

companies do.

10

A.

The reality is I don't know what is in

11

their heads, no?

12

Q.

Isn't it true in 2005 human reviewers

13

were only supposed to be looking for under your

14

policies literal matches of trademarks?

15
16
17
18
19

A.

I don't believe that would be in the

policy, no.
Q.

Let's take a look at page 98, line 24.

We are talking about the U.S. PTO matching.
The question is:

"Now, the U.S. PTO

20

matching that would be output into the

21

spreadsheet, was that literal or fuzzy?"

22

"At the time?"

23

"At the time, 2005."

24

"It was a literal match."

25

So I want to you ask you about that.

Page 96
1

The spreadsheet that these human reviewers were

2

receiving --

3

A.

Yes.

4

Q.

-- would include the potential domain

5
6

name for registration?
A.

Yes.

7

Yes, I mean I don't exactly remember

8

what these spreadsheets looked like in 2005, but

9

certainly if that's the testimony I gave you, that's

10
11

probably accurate at the time, yes.
Q.

12

Okay.
But in 2005 you believe the information

13

that the human reviewers would have received in

14

terms of trademark registration from the U.S. PTO

15

would have been literal as opposed to some sort of

16

fuzzy matching system?

17
18

A.

You're asking me if the actual matching

in the spreadsheet was literal and not fuzzy?

19

Q.

Correct.

20

A.

The answer is probably yes.

The

21

question you asked me before is whether it was going

22

on in their heads it was a fuzzy match or not.

23
24
25

Q.

Then we go on to talk about a domain

name you registered, K-I-D-E-R-O-C-K -A.

Yes.

Page 98
1

Q.

We will have dates eventually.

2

A.

Good.

3

Q.

Your trademark vetting process that, the

4

fuzzy matching process --

5

A.

Yes.

6

Q.

-- that didn't come into play until

7

domain tasting under the ad grace period; is that

8

true?

9

A.

I honestly don't remember exactly.

10

Q.

Did the trademark clearance, your

11

internal process, the vetting process, did it have

12

any significant changes between the time you arrived

13

in 2005 and the beginnings of your domain tasting

14

under ad grace period?

15

A.

I don't recall.

16

Q.

Let me see if I can refresh your

17

recollection.

18

Let's go to page 119 of your

deposition.

19

A.

Yes.

20

Q.

On line three I ask the question:

21

"Prior to implementation of the change

22

which was able to take advantage of the AGP,

23

was the process that we talked about before

24

lunch, in terms of trademark clearance, the

25

same through that period?"

Page 99
1

Answer:

2

"Domain registration process,

is that what you're saying?"

3

Question:

4

"Yes, in terms of trademark

clearance."

5

Answer:

"Was the trademark vetting

6

process the" -- this is you.

7

trademark vetting process the same during

8

that period?"

9
10

"Was the

You're asking me if that's what I'm
asking.

11

A.

Yes.

12

Q.

I say:

13

"Yes."

14

You say:

"Yeah, I believe there weren't

15

any significant iterations during that period

16

of time."

17

A.

Okay.

18

Q.

So at the time of your deposition you

19

didn't believe there were any significant changes to

20

the trademark vetting process until we got to the ad

21

grace period?

22

A.

Sure.

23

Q.

Do you have any reason to disagree with

24
25

your recollection at that time?
A.

No, if that's what I said that was the

Page 105
1

lawsuit.

2

A.

In my personal belief I do believe that.

3

Q.

And you were aware that your company

4

sued Verizon for doing virtually the exact same

5

thing that we are suing you for?

6

A.

I'm aware of that, yes.

7

Q.

You asked a court of law to award your

8

company Connexus $100,000 per domain name against

9

Verizon for cybersquatting on virtually the exact

10
11

same facts we have here.
A.

That's correct.

12

MO

13

MR. DELGADO:

I move to strike that for

14

purposes of interposing an objection.

I

15

interpose the objection for calling for a

16

legal conclusion and calling for speculation.

17

Q.

Let's go, to clean it up, we will go to

18

page 163 of the deposition.

19

talking about the Verizon lawsuit and counterclaims.

20

On line two we are

The question I asked was:

"Okay.

Are

21

you aware that your company took the position

22

that DNS wildcarding by Verizon whereby

23

typographical errors of domain names and the

24

web browser was unlawful under the Anti-

25

cybersquatting Consumer Protection Act?"

Page 106
1

Your answer:

"Again, I didn't make the

2

legal decision on, you know, exactly the

3

definitions in that case.

4

you is that the process of our business" --

5

(being Connexus Firstlook.)

6

A.

Yes.

7

Q.

"Is no different than what Verizon is

8

What I can tell

doing as a wildcarding."

9

A.

Yes.

10

Q.

"An ISP or as a default browser is in

11

Google Chrome, for example.

From a practical

12

matter, there's absolutely zero difference."

13

A.

I agree with that statement.

14

Q.

Did you ever voice as the president of

15

Firstlook any concerns that your company was suing

16

Verizon in court for violating the ACPA on a

17

business model where there was absolutely zero

18

difference between what you were doing and what they

19

were doing?

20
21

A.

No.
I think the general, again I don't

22

recall those conversations, that was a while ago,

23

but I think the general, you know, mood was that it

24

was a bit of sort of the pot calling the kettle

25

black in a way to show how ludicrous in some ways

Page 158
1

the names.

2

built that actually goes through the names

3

individually.

4

that were potentially, you know, that didn't fit

5

with the sort of new company policy which was not to

6

own domain names which would be potentially

7

problematic, yes.

8

Q.

9
10
11
12

In fact, I believe there was software we

And the goal was to get rid of names

Not only potentially problematic, but in

your company viewpoint were problematic?
A.

Right, of course, that's how we got rid

of them.
Q.

If you go to page 182 of your

13

deposition, line four, there is a question about

14

this purge, 182, line 4.

15

this process and your answer on line 10 is:

I ask a question about

16

"So what we did is we looked back at our

17

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

18

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

19

whole portfolio and identify domain names

20

that we should have known."

21

Meaning that you could have caught

22

before, you should have caught before, but under

23

this new company policy, we are now going to get rid

24

of these domains?

25

A.

That's a fair, yes, that's a fair

Page 159
1

characterization.

2

Q.

Why did it take you until 2008 to start

3

taking trademark issues serious enough to have this

4

new policy?

5

A.

I can't speculate what was going on then

6

to understand exactly why we made that shift, but

7

you know, the business was maturing and we changed.

8
9

Q.

Okay.
MR. SCHAEFER:

This will be a new trial

10

exhibit and it will be a trial exhibit, I

11

have got it somewhere.

12

Let's go off the record a second.

13

THE VIDEOGRAPHER:

We are now going off

14

the record at approximately 1:26 p.m., April

15

12th, 2012.

16
17
18

(Whereupon, an off-the-record discussion
was held.)
THE VIDEOGRAPHER:

This is the

19

continuation of tape number three of the

20

deposition of Mr. Seth Jacoby.

21

going on the record at approximately 1:30

22

p.m., April 12th, 2012.

23

We are now

(Plaintiff's Exhibit 276, Affidavit of

24

Seth Jacoby in Support of Motion to Quash,

25

marked for identification, as of this date.)

Page 291
1

A.

No.

2

Q.

In general though you're making in

3

excess of $10 million annually off of this business

4

model?

5

A.

No.

6

Q.

Or you were at one time?

7

A.

At one time, possibly.

8

Q.

There was a discussion about affidavits

9

and whether or not they were accurate.

You

10

testified that initially that you thought that the

11

agreement was recent that the defendants would pay

12

your attorneys fees.

13

the break and changed that and said you know what, I

14

think that was part of my exit deal.

And then you came back after

15

A.

Not think, I know.

16

Q.

You know it was part of your exit deal

17

approximately 10 months ago or so, July 2011?

18

A.

Correct.

19

Q.

But in your affidavit that you submitted

20

in New York to try and avoid this deposition, your

21

affidavit says:

22

"Wherefore it is respectfully requested

23

that the application seeking to quash the

24

subpoena and an issuance of a protective

25

order be granted, in judgment together with