J.T. Colby & Company, Inc. et al v. Apple, Inc.

Filing 110

DECLARATION of Dr. E. Deborah Jay, Ph.D. in Support re: 104 MOTION for Summary Judgment.. Document filed by Apple Inc.. (Attachments: # 1 Exhibit)(Cendali, Dale)

Dale Cendali
Claudia Ray
Bonnie L. Jarrett
KIRKLAND & ELLIS LLP
601 Lexington Avenue
New York, New York 10022

Perry J. Viscounty
LATHAM & WATKINS LLP
140 Scott Drive
Menlo Park, CA 94025
Jennifer L. Barry
LATHAM & WATKINS LLP
600 West Broadway, Suite 1800
San Diego, CA 92101-3375

Attorneys for Defendant
APPLE INC.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
J.T. COLBY & COMPANY, INC. d/b/a BRICK
TOWER PRESS, J. BOYLSTON & COMPANY,
PUBLISHERS LLC and IPICTUREBOOKS LLC,
Plaintiffs,
- against -

Case No. 11-CIV-4060 (DLC)
ECF Case

APPLE INC.,
Defendant.

DECLARATION OF DR. E. DEBORAH JAY, PH.D. IN SUPPORT OF
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

I, E. Deborah Jay, Ph.D. declare as follows:
1.

I submit this declaration in support of the motion by Apple, Inc. for summary

judgment. I am over the age of 18 and competent to testify. I have personal knowledge of the
matters stated in this declaration and would testify truthfully to them if called upon to do so.
2.

I am President and CEO of Field Research Corporation, a marketing and public

opinion research firm, headquartered in San Francisco, California. I have over 30 years of
experience conducting large-scale surveys of all types, including surveys for public agencies,
nonprofit organizations, private companies, and law firms. I have conducted many surveys on
behalf of plaintiffs and defendants in trademark cases. I have testified in state and federal courts,
and I routinely have been qualified by courts as an expert in survey methodology.
3.

As detailed in my expert report attached hereto as Exhibit 1, I conducted a

likelihood of reverse confusion survey (the “Field Survey”) at the request of counsel for Apple to
determine whether potential buyers of print books on Amazon.com and Barnesandnoble.com are
likely to mistakenly believe that Apple is the source of, a brand affiliated with, or a sponsor of
books sold by Plaintiffs on the Internet.
4.

The Field Survey was an “Eveready”-style survey, designed in accordance with

the methods and format for likelihood-of-confusion surveys endorsed in the seminal case of
Union Carbide Corp. v. Ever-Ready, Inc., 531 F.2d 366 (7th Cir. 1976), and repeatedly reaffirmed
by courts. The Field Survey was conducted according to accepted survey standards and in
conformity with the standards discussed in the Federal Manual for Complex Litigation, 4th Ed.
§ 11.493 (2004) and the Reference Guide on Survey Research, Federal Reference Manual on
Scientific Evidence, 3rd Ed. (2011).

1

5.

The Field Survey included two “test” groups. The stimulus for the first test group

was the actual web page for a book published by Plaintiffs that was available for sale on the
Amazon.com website. The stimulus for the other test group was the actual web page for a book
published by Plaintiffs that was available for sale on the Barnesandnoble.com website.
6.

Less than 1% of the 428 survey respondents in the two test groups (the groups

shown the actual web pages from the Amazon.com and Barnesandnoble.com websites) named
Apple in response to the questions in the Field Survey about the source, the affiliation and
sponsor of Plaintiffs’ books, and none of the survey respondents in the two test groups named an
Apple product in connection with Plaintiffs’ books. In my opinion, this strongly supports the
conclusion that there is not a likelihood of reverse confusion.
7.

I declare under penalty of perjury under the laws of the United States that the

foregoing is true and correct.
Executed this 21st day of December, 2012 in San Francisco, California.

______________________________
E. Deborah Jay, Ph.D.