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

Filing 127

DECLARATION of Dale M. Cendali in Opposition re: 87 MOTION for Partial Summary Judgment.. Document filed by Apple Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Tab - Borden Dep., # 10 Tab - Colby 30(b)(6) Dep., # 11 Tab - Gedikian Dep., # 12 Tab - Goldhor Dep., # 13 Tab - Gundersen Dep., # 14 Tab - Kvamme Dep., # 15 Tab - La Perle Dep. (REDACTED), # 16 Tab - Widup Dep.)(Cendali, Dale)

CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER
Page 1
HIGHLY CONFIDENTIAL
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
- - J.T. COLBY & COMPANY,
: Case Number
INC. d/b/a BRICK TOWER
: 11-CV-40260
PRESS; J. BOYLSTON &
: (DLC)
COMPANY, PUBLISHERS LLC
:
and IPICTUREBOOKS
:
LLC,
:
Plaintiffs,
:
:
vs.
:
:
APPLE, INC.,
:
Defendant.
:
-

-

-

October 3, 2012
HIGHLY CONFIDENTIAL
- - Videotaped deposition of GLENN
GUNDERSEN, ESQUIRE, taken at the offices of
Veritext National Court Reporting Company,
1801 Market Street, Suite 1800, Philadelphia,
Pennsylvania 19103, beginning at 9:24 a.m.,
before LINDA ROSSI RIOS, RPR, CCR and Notary
Public.
- - VERITEXT NATIONAL COURT REPORTING COMPANY
MID-ATLANTIC REGION
1801 Market Street - Suite 1800
Philadelphia, Pennsylvania 19103
VERITEXT NATIONAL COURT REPORTING COMPANY
[phone] ~ 215-24-1000 ~ 610-434-8588 ~ 302-571-0510

CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER
Page 139
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2
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GLENN GUNDERSEN, ESQUIRE - HIGHLY CONFIDENTIAL
new question.
BY MR. CHATTORAJ:
Q.

Mr. Gundersen, prior to

5

January 27, 2010, did you visit the Web site

6

of Family Systems?

7

MS. CENDALI:

And with the

8

understanding that this is not a

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privilege waiver, but is really him

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recounting his -- what he observed as

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a factual matter, I will allow him to

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answer the question.

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say, Counsel?

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Is that fair to

MR. CHATTORAJ:

The purpose of

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my question is to elicit the factual

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basis of Mr. Gundersen's statements

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concerning Family Systems.

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seeking to elicit is that factual

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information.

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MS. CENDALI:

All I'm

So long as we

21

understand each other that you're not

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trying to elicit privilege information

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in his answering this question, won't

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be treated by you as revealing

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privilege information, he can answer

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CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER
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GLENN GUNDERSEN, ESQUIRE - HIGHLY CONFIDENTIAL
the question.

2
3

MR. CHATTORAJ:

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I can confirm

both of those things.

5

MS. CENDALI:

Thank you.

6

THE WITNESS:

Prior to

7

January 27, 2010, I did visit the

8

Family Systems Web site.

9

BY MR. CHATTORAJ:

10

Q.

When?

11

A.

At some point in January 2010

12

prior to the 27th.

13

Q.

Did you visit the Family

14

Systems Web site before January 2010 at any

15

time?

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17
18

A.

I don't believe so, but I can't

be sure about that.
Q.

Prior to January 27, 2010, did

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you utilize products or services offered to

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the general public by Family Systems?

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A.

What do you mean by "utilize"?

22

Q.

Did you see any product or

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services offered to the general public by

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Family Systems prior to January 27, 2010?

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A.

I did see products or services

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GLENN GUNDERSEN, ESQUIRE - HIGHLY CONFIDENTIAL

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offered at that site.

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Q.

Did you see any products or

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services offered to the general public by

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Family Systems other than on the Family

6

Systems Web site?

7
8
9

A.

I don't believe so, but I can't

be certain about that.
Q.

Is it fair to say that at this

10

time, you do not recall observing any facts

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regarding Family Systems other than in

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connection with visiting the Web site in

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January 2010?
THE WITNESS:

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15

that?
-

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-

-

(The court reporter read the

17
18

Could you repeat

pertinent part of the record.)
-

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-

-

THE WITNESS:

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The question is

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whether I observed any facts with

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respect to the Family Systems Web

23

site?

24
25

BY MR. CHATTORAJ:
Q.

No.

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CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER
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GLENN GUNDERSEN, ESQUIRE - HIGHLY CONFIDENTIAL
Q.

Are you ready to proceed, Mr.

Gundersen?

4

A.

You can ask the next question.

5

Q.

My first question is, does this

6

printout resemble Web pages that you received

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when you visited the Family Systems Web site

8

in January 2010?
MS. CENDALI:

9
10

Objection.

You

can answer.
THE WITNESS:

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At this point, I

12

don't recall what those Web pages

13

looked like.

14
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BY MR. CHATTORAJ:
Q.

You do recall that when you

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visited the Family Systems Web site, you

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perceived that Family Systems offered

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products or services.

Correct?

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A.

Correct.

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Q.

What were those products and

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services that you perceived?
A.

They were offering software

application.
Q.

They were offering a single

software application?

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GLENN GUNDERSEN, ESQUIRE - HIGHLY CONFIDENTIAL

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was going to be in the client's words.

3

Did you have an awareness of

Q.

4

what the market was and whether it's going to

5

be a consumer product with respect to the

6

iBooks mark?

7

A.

In this case, we understood

8

that it would be a consumer product.

Apple

9

has other marks which the average person

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wouldn't be familiar with, for instance in

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the software development field.

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would be marks that are just used with --

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typically just used with a specific audience.

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This, we did understand, was going to be a

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consumer product.

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Q.

And those

Now, in connection with your

17

work on the Apple/Family Systems agreement in

18

January 2010, did you have an understanding

19

of what Family Systems goods and services

20

were at that time?

21

A.

Well, Family Systems had

22

software.

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mark for software, and I looked at the

24

database, spent time looking to see what it

25

was that they were doing, and I had an

They had a registration of the

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understanding of what it was.
Q.

What database did you look

5

A.

I'm sorry, I looked at their

6

Web site.

7

Q.

3
4

into?

So you looked at the Web site

8

and used it to gain an understanding of what

9

their goods and services were?
A.

10

Yes.

It's possible that we did

11

other investigation as well, but I don't

12

recall at this point.

13

Q.

Did you have an understanding

14

of what Family Systems' market was at that

15

time?

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17
18

A.
to B product.
Q.

The Family Systems was not a B
You was a consumer product.
Going back to your testimony

19

about the approach you take to trademark

20

clearance searches, is it, therefore, correct

21

to say that when Dechert LLC carries out a

22

trademark clearance search, that the concept

23

of a preliminary or knockout search is simply

24

inapplicable?

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MS. CENDALI:

Objection.

You

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