Timebase Pty Ltd v. Thomson Corporation, The

Filing 188

NOTICE OF HEARING ON MOTION re: 185 Motion for Leave to File. Date and time to be determined. (Hosteny, Joseph) Modified text and link on 10/7/2010 (jz).

Timebase Pty Ltd v. Thomson Corporation, The

Doc. 188

ZASTROW EXHIBIT 1

ZASTROW EXHIBIT 1

Dockets.Justia.com

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Case No. 08-CV-1010 (RHK-JSM) -----------------------------------------x LEMOND CYCLING, INC., Plaintiff, - against TREK BICYCLE CORPORATION, Defendant and Third-party Plaintiff, - against GREG LEMOND, Third-party Defendant. -----------------------------------------x February 18, 2009 9:02 a.m. DEPOSITION of SIDNEY D. BLUMING, taken by the Defendant, pursuant to Notice, held at the offices of Bluming & Franco, 140 East 45th Street, New York, New York, before Debbie Zaromatidis, a Shorthand Reporter and Notary Public of the State of New York.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Q. A. Q.

BLUMING You went to Brooklyn Law School? That's correct. Graduated in 1968? That's correct. And since 1968, what has been

your line of work? A. I have always been in private

practice with various law firms. Q. Okay. And has licensing been a

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

about your practice in the area of licensing? A. Since the early '70s, I have

been involved in various aspects of licensing, really all aspects of licensing representing manufacturers, designers, athletes, personalities, retailers, licensing representatives. I have -- I

have been speaking on licensing at various trade associations and licensing groups. 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 matters. It is a significant component of I have a general commercial I am involved in

our practice.

business practice.

arbitration, and I sit as an arbitrator with the American Arbitration Association primarily in intellectual property matters. Q. A. Okay. And as I said a general

commercial practice by and large. Q. How would you describe licensing

to a 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 or service that entity has an experience -- has an expertise in producing and so on. Q. And in the context of renting

one's name and likeness to somebody else, that, as I think you have written, is -- becomes a shared enterprise, right? A. I think that a good licensing

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Q. Yes.

BLUMING Item number 5, product

development refers to "bilateral agreement on appropriate product." Do you see that? Yes. Do you have an understanding why

there would be a bilateral agreement being discussed for product development? MS. RAHNE: form, foundation. A. Again, you are asking me for I think there is rationale I object to the

speculation. to it.

I think from Trek's point of view

they didn't want to produce 12 wheeler bikes, and from Greg's point of view he didn't want bikes that looked like bubble gum machines. I think each had an

interest in the product representing what could be done and what should be done. Q. Okay. So when we talk about

bilateral approval product development, do you see that as an issue that makes sense for the licensor, Mr. Lemond, to be concerned about?

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Q.

BLUMING Dick Burke at Trek to you dated May 8, 1995. (Document handed to witness.) This is a seven-page fax

including the cover sheet for those of us old enough to remember faxes as opposed to E mails. A. Q. They weren't even started. Even before faxes. MS. RAHNE: I remember faxes.

Take a minute to look at that. (Pause.) Okay. Well, I -- I see that the I don't know if

fax is addressed to me.

it is gratuitous to say, but Mr. Burke was the consummate gentleman and a delight to deal with and I was sorry hear about his passing. He was a lovely man, and all the

discussions were at an enormously gracious level and courteous level. Q. Was Mr. Dick Burke your primary

point of contact on the Trek side of the deal? A. He was the primary business

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BLUMING which we have talked about and this current draft says, "Trek determines channels of distribution so long as they are consistent with Greg's image and reputation and that of approved products sold in better stores." Right? A. Q. That is the same. And your highlight is "agreed if

Trek is satisfied with parenthetical insert, which is frequently used in such cases. " That refers to the -- to what parenthetical insert? A. The one you read about Greg will

not withhold consent to frustrate Trek's exploits. Q. You explain "It allows

personality the needed protections of his or her image, et cetera, and insures licensee that there wouldn't be arbitrary or vengeful sabotaging of the agreement"? A. I think I explained to Dick that

is what I used in the Elizabeth Taylor deal. Q. Number 9, promotion and

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A.

BLUMING So it carried its way over into

this iteration. Q. Yes, and we saw in one version

the specific percentage was not included? A. Q. In the deal point memo. Right. But now in this version

of the agreement it is, right? A. You know, it is -- it is in

everyone's best interests to have a tangible guideline, Trek's as well. I

mean Trek wouldn't want us to say it would be 10 percent. reasonable. That wouldn't have been

So 3 percent is almost as

much a limit as it is a minimum. Q. Okay. (Exhibit 127 marked for identification.) (Document handed to witness.) Exhibit 127 is an August 14

letter from you to Mr. Siefkes again. A. No wonder the rain forests are

in trouble. MS. RAHNE: it, and we reuse it. You guys produce We are all culpable

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