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
212-267-6868
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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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