Timebase Pty Ltd v. Thomson Corporation, The

Filing 118

MEMORANDUM in Support re 116 MOTION to Compel Responses to Interrogatories 1 and 8 filed by Timebase Pty Ltd. SEALED DOCUMENT RECEIVED IN CLERKS OFFICE ON 2/12/10. (Gasey, Arthur) Modified on 2/12/2010 (akl).

Timebase Pty Ltd v. Thomson Corporation, The

Doc. 118 Att. 7

Exhibit 10

Dockets.Justia.com

1
UNITED STATES DISTRICT COURT

DISTRICT

O F MINNESOTA

4
5

Case

No.

08-CV-1010

(RHK-JSM)
-X

--------------------________I___________

6

LEMOND

CYCLING,

INC.

,

7
8

Plaihtiff,

TREK BICYCLE

against

and
Plaintiff,

9
10

CORPORATION, Defendant

11
12
GREG
`

Third-party

LEMOND,

against

Defendant.
-X

14

Third-party

........................................
16
February
18,

2009

9:02

a.m.

17
18
DEPOSITION

of

SIDNEY

D.

BLUMING,

19
20 21 22 23

taken

by

the
held

Defendant,

pursuant

to
&

Notice,

at

the

offices

of

Bluming New York,

Franco,
New

140 E a s t

45th

Street,

York,

before D e b b i e

Zaromatidis,

a

Shorthand R e p o r t e r the State of
New

and N o t a r y

P u b l i c of

York.

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1BLUMING MS. RAHNE: Denise Rahne,

3 4 5
6

counsel

for Greg Lemond and the deponent. D. BLUMING, sworn by
a Notary

SIDNEY having

first been duly

P u b l i c o f t h e State of N e w York, was examined and testified as follows: BY MR. WEBER:

7
8

EXAMINATION

9
10

QA.

Good morning.
Good morning.

11 12
13
xb

Q.

Could you

tell us your

full

name, please. A. Sidney Bluming. And you are a lawyer, Mr.

i

14 15 16 17 18 19 20 21 22 23 24 25
New

Q.
Bluming? A.

Yes,

I am.

Q.
York?
A.

And we are in your offices in

Correct. Tell us
a

Q.

little bit

about your

background,
A.

where you are from. to birth or do you

Going back

want a

starting point? W h e r e , d i d you New York, born grow up? and raised.

Q.
A.

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, -

1

BLUMING

Q.
3
A.

You went to Brooklyn L a w School? That's correct. Graduated i n 1968? That's correct. And since 1968, what has been

4
5

Q.
A.

6

Q.
your

7
8 9
10

l i n e of work?

A.

I have always been in private
various law firms. And has licensing been a

practice with

Q.
particular

Okay.

11 12
13

concentration of yours? Yes, Okay. it has. Tell us a little bit

A.

Q.

14 15
16

about y o u r practice in the area of licensing?
A.

Since the early

OS,

I have

27

been

involved in various aspects of

18 19

licensing, really all aspects of licensing representing manufacturers, designers, athletes, personalities, retailers,

20
21 22
23

licensing representatives. have been

I have

--

I

speaking on licensing at various

trade associations and licensing groups.

24
25
i

I have written some work on licensing and
business periodicals in business.

I have

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-

BLUMING
been an expert witness in licensing It is a significant component of

2
3
4

matters.

our practice.

I have a general commercial I am involved in

5
6

business practice.

arbitration, and I sit as an arbitrator with the American Arbitration Association in intellectual property

7
8

primarily matters.

9 10 11 12
.
*

Q.
A.

Okay. And as I said a general and large.

commercial practice by

.
t

13 14 15 16 17 18 19 20 21
to a

Q.

H o w would

you describe licensing

layperson? A. Probably the simplest way to

describe it is that it is renting one's name and image to another for use in connection with a product entity has an experience or service that has an

--

expertise in producing and so on.

Q.

And

in the context of renting

22
23 24 25

one's name and likeness to somebody else, that, as I think you have written,
is

-A.

becomes a

shared enterprise, right?

I think that a good licensing

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BLUMING

Q.
3
makes m o r e sold,

Because

i n part

insofar

as

his he get

compensation

i s based

on b i k e

sales,
that

4
5

money

the more bikes

right?
Greg

6
7
8

A.
Trek

was

always i n t e r e s t e d as they always
that,

in could

d o i n g a s much m a r k e t i n g

t o promote b i k e

sales.

He

was

9
10 11
12

e n t h u s i a s t i c about Trek
far

doing

and as

as

I

can

recall he always

encouraged

Trek

doing

that. Okay.
He

Q.
Trek

was

enthusiastic

about

13

doing marketing. How e n t h u s i a s t i c w a s
Mr.

14
15
16 17 18
19

Lemond

about helping appearances
to

Trek

through personal
of

s e l l more
I

h i s bikes?

A.

Well,
of

have

specific

recollection through

e i t h e r Greg d i r e c t l y o r to use him

me

encouraging Trek

20 21 22 23 24 25

more t o promote Europe, but he to

sales p a r t i c u l a r l y i n really

was

asking

Trek and to

constantly take

do more marketing of him in doing

advantage

that

marketing.

Q.

So y o u h a v e

specific

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BLUMING
recollection more him than of Greg wanting to do even

28

I

2
3
4 5

the contract required as experiences?

--I

of

as far as personal

A.
won't years

1 don't

think Trek ever

6

say ever but

certainly in recent to appear

7
8 9
10 11
12

came close to asking him spend 30 days.

30 days or
Q.rc

Do you recall
ever saying

in the contract to Trek
I know

negotiations you've asked

for 30 days, but we would we think that will
Do you

like to do
help

45 because

13 14 15 16

us

sell more bikes? like that? Of course not. Why Why? do you

remember

anything
A.

Q.
A.

say that? a licensor

17
18

Because

--

any

contract

sets limits,

and once you commit are

19

contractually

to limits you

20
21

contractually committed. partnership cooperation think was would have

A good

required together, which
I

22

and planning

23
24

contemplated

in the agreements effort. So if

in terms of a marketing Trek had a good plan

25

t o use Greg to market

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MS.
BLUMING RAHNE:

I

object

to

the

3
4 5

form.
A.

It

seems

fairly evident.
you

Q.
the

Well,

when

say it

confuses

6
7
8

image,
A.

in

what

way?

Well,

what

does

it stand for?
high end

Does

it

stand for does

a prestigious,

9 10

bicycle o r
that

it stand for a bicycle
price t h e

is being

s o l d a t whatever

11

market carry

will it.
So

bear

i n any store t h a t w i l l

12

Q.

s e l l i n g it i n
selling

-at

in

the store

latter hypothetical

any

15 16

that w i l l can

carry

i t a t whatever p r i c e you
the

get

could undercut end b i k e

image
in high

of

being

17

a high
stores?

available

end

18
19

MS. RAHNE:
form.
A.

I

object

to

the

20 21 22 23 24 25

Go

ahead.
Yes.

Q.
Lemond's
A.

And

that

would damage M r .

brand
Sure.

image? I mean that

i s why

a

--

an Armani h a s

several

different

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/--

1
. 2
lines. in

BLUMING

\

*
-

-'

The h i g h

e n d Armani

line

is sold

3
4

the high

end s t o r e s , or

b u t Armani

accessories

t h e r e may b e

a l e s s o r brand
sold at

5
6
7 8

of

Armani

suits or

s h i r t s c o u l d be stores,

l o w prices

a t different c o u l d be of fact

a n d Armani

handkerchief

s o l d anywhere,

and
the
I

as a m a t t e r

t h a t might help say,
I

9

brand because people might like
Well,

gee,

10
11
12

that
if

scarf.

Where do

get a s u i t ?
and is they a

you

bring

them u p s t a i r s dollars,

buy good

a

suit thing.

for

5,000

that

<.

.,
i
/

L

13 14
15

1

Q.
your

So i n

the

approval

section

of

deal p o i n t s ,

you

are l o o k i n g t o
in

16

protect Mr. quality of

Lemond b o t h the product

terms

of

the that

17
18
19

and the places

it is sold?
A.

That

is what
9

it says.
then of
the

Q.
21 22 23
24

Paragraph

deal

points

relates

t o promotional explain the

and Dick to

marketing, Burke
use

and you

to Mr.

"Trek

should have

obligation

i t s best e f f o r t s t o

sell aggressively

.

25
:

t o m a x i m i z e volume,1t a n d t h e n you g o on t o

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2
explain

BLUMING
"It is typically for a licensee to sales on could

3

spend a percentage advertising

of its net

4

and promotion, which

5
6

include participation magazine

in trade shows, co-op

advertisements,

7
8 9
10 11 12 13

advertising, cetera. Did
A.

independent contests et

I read that correctly?

I again compliment your reading

skills.

Q.
explain
A.

And what were you

trying to

to Trek in this deal point? That marketing important. is important. a It

14
15
16

is very

It is what

businessman told. him.

doesn't have

to really be

17 18 19
20

I wasn't
It was

trying to b e pedantic with from a license saying these

simply

agreement perspective these

--

how

--

this is how handled.

these things are They are generally agree a

21

generally

22
23
24 25

handled whereby that on

the licensee will

--

that in addition

to paying apply an

,percentage royalty, amount to marketing

they will

and promotion

so as to
-

~-

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maximize

BLUMING
sales,
this and is a
I

was

encouraging

3
4

them,

and

deal p o i n t

w e backed
agreement

away f r o m I b e l i e v e

the ultimate and take

5
6

as p a r t
alluded there

of

the that

give

t h a t you a

to

t h e r e would be or c o u l d be

--

that

7
8

s h o u l d be

this
We

percentage would
go

commitment on T r e k ' s p a r t . to know
It

9
10

like

that

they

are going t o
the

out

there.

is j u x t a p o s e d w i t h
and
I

11

best

e f f o r t s undertaking, away on

t h i n k by

12
13

backing relying

from t h e p e r c e n t a g e a n d
efforts,

t h e best that we
efforts

you

know, on

we

14
r"

indicated

were
and

relying their

more

15 16

t h e i r best

commitment Trek
said

and their

trust what

in

things

that

17
18
59

i n t e r m s of
sales.

i t would do

t o maximize

Q.
this

Well,

we

will
out,

look but in

a t how

it

20 21 22 23 24
25

ultimately played

any event

in

deal p o i n t what you
of promotion

are t a l k i n g about

in

kerms

and marketing

is
for

that

i n your

experience t o be

it is
net

typical

a percentage

--

of

sales

t o be

set aside for promotion

and marketing?

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