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

Filing 135

DECLARATION of Claudia T. Bogdanos in Opposition re: 120 MOTION in Limine to Exclude any Testimony, Argument or Evidence Regarding the Expert Reports and Opinions of Susan Schwartz McDonald.. Document filed by Ipicturebooks LLC, J.Boyston & Company, J.T. Colby & Company, Inc., Publishers LLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I Part 1, # 10 Exhibit I Part 2, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q, # 19 Exhibit R)(Chattoraj, Partha)

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EXHIBIT K 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -----------------------------X J.T. COLBY & COMPANY, INC., d/b/a BRICK TOWER PRESS, J. BOYLSTON & COMPANY PUBLISHERS LLC and IPICTUREBOOKS LLC, Plaintiffs, vs. No. 11-cv-4060 (DLC) APPLE, INC., Defendant. -----------------------------X VIDEOTAPED DEPOSITION OF E. DEBORAH JAY, Ph.D, taken by Plaintiffs, pursuant to Agreement, at the offices of Quinn Emanuel Urquhart & Sullivan LLP, 51 Madison Avenue, New York, New York, on Friday, November 30, 2012, commencing at 9:45 a.m., before Chandra D. Brown, a Registered Professional Reporter and Notary Public within and for the State of New York. Job No: 27813 DEPOSITION CORRECTION SHEET In the matter of J.T. Colby & Company, Inc. v. Apple, Inc. Witness, E. Deborah Jay, Ph.D., November 30, 2012. PAGE:LINE CHANGE TO: REASON:* 24:16 36:10 37:9 37:21 37:23 38:6 39:16 40:2 40:8-9 TE TE TE TE TE TE TE TE TE frequency. This happens to be the Ilit case b-o-o-k-s – capital “I” n-c. lower case “ibooks,” comma, “Incorporated,” “The Stars My Destination,” and then if you version of “The Stars My Destination” in comma, “Incorporated.” comma, I-n-c period. So that’s what’s listed. Sure. In the Kargo versus Advance where Kargo, or Mr. Kargman used a phrase, “powered by Kargo,” in connection with certain, 41:2-3 likelihood of confusion between Kargo, as used in the “powered by Kargo” software, and Cargo, 42:19 confusion study. I believe Professor Simonson 55:14-16 “publish” throughout the verbatims. “I don’t see the publisher.” Here “It said the publisher, right under product details.” The verbatims use 57:14 to “Brick Oven.” So – I don’t really see what 61:7 So it’s – to the extent that it shows 63:24 experience and education and training. So my 65:15 think that the source, sponsor or it was affiliated 66:11 sometimes described as the gold standard, the 68:19 measured in the Union Carbide case. I measured it 71:17 recollection; again, it’s years, many 75:11-12 So the question was “Were the two Everreadies affiliated with each other?” And 78:6 No. I believe it measures affiliation 78:14 credited both as an indicator of affiliation 84:15 mentioned Ibooks, Inc. or ibooks Incorporated, 85:9 I want to look at one thing quickly since I 92:7-9 For example, it misquotes the Reference Manual on Scientific Evidence, in that the Reference Manual, had the entire passage been 92:18 that portion of the Reference Manual was 94:15 dress of Gallo’s Turning Leaf after the 106:20 has spent his life doing survey research, 109:2-3 We don’t know, for example, where Research Now recruits its participants, how many web 109:10 survey on an iPhone or a smartphone. There’s a 110:4 another case. But I do recall that there is a 112:19 MS. CENDALI: Do you want to take a break? 117:8 “It’s right here under product details.” “I 119:17 leave the computer on. It was a part of the * TE = Transcription Error TE TE TE TE TE TE TE TE TE TE TE TE TE TE TE TE TE TE TE TE TE TE TE TE TE 120:5 131:8 131:12 134:13 134:19 135:18 138:25 140:19 146:12 146:16 147:5 147:10 149:20 153:16 153:19 153:21 154:4 154:24 158:23 162:24 163:7 163:18 165:8-9 168:16 168:21 170:3 173:24 189:20 202:19 207:18 208:11 208:16 213:10 216:16 217:14 230:24 238:9 240:13 245:22 Global it’s the CD, until the end of the interview. “ibooks” Incorporated, and so – I also sort by relevance, popularity, best seller. Stars My Destination” is a science fiction Apple mentions. The data permit you to do that the Barnes & Noble “The Stars My confused by “The Stars My Destination” books, but I want to make it clear that, are less sophisticated than – The data to the hardback books. the web page for digital books is either the about audible books, but about 11 percent of the this book, and that’s the reality of the recall from the Louis Vuitton-Gucci case, that Louis Vuitton-Dooney & Bourke, where the survey where they had shown respondents a Coach purse, survey in a trademark likelihood of confusion, attention to the top of the page, the bottom not concerned whether they are confused about the found that there was not a likelihood of this is over five years ago but – and a certain Baby mentions in the test and control group. certainly after that case there was the Louis Vuitton-Dooney & Bourke case. main source confusion question, but it was a But is was not the main source Bourke case, I think it would be – would have we trained them on this survey, so I didn’t the source or is the sponsor affiliated with to miss any of those. developed primarily by the staff at the has no involvement in the design of the some of our suggestions and rejects others. Field Research’s interviewing supervisors Reference Manual allows what’s commonly interviewing or not, so I don’t know, but if she about whether the makers of the tee-shirt make that – actually, I believe, I tried to clarify MS. CENDALI: Objection. and the imprint is an indicator of who puts out Nowlis TE TE TE TE TE TE TE TE TE TE TE TE TE TE TE TE TE TE TE TE TE TE TE TE TE TE TE TE TE TE TE TE TE TE TE TE TE TE TE TE Note: Throughout the transcript, when I referred to the name “IBOOKS,” the court reporter transcribed it in the following manner: “iBooks.” Unless I indicated this as part of my answer, I did not intend for “IBOOKS” to be stylized in any particular manner. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed this 15th day of January 2013 at San Francisco, California. ________________________________ E. Deborah Jay, Ph.D. 30 1 2 E.D. Jay - 11/30/12 BlackBerries. 3 So I believe our IT director has a 4 corporate smartphone, but it is a BlackBerry; 5 our interviewing director has a corporate 6 smartphone which is a BlackBerry; and then a 7 senior vice president has a BlackBerry; and 8 then my CFO and I each have, I believe, 9 iPhones. 10 Q 11 that in a store or over the Internet? 12 A 13 corporate iPhone for me. 14 not personally purchase either iPhone. 15 husband purchased the other iPhone for me. 16 believe he did that at a Verizon store. 17 Q 18 Apple? 19 20 When you bought your iPhones, did you do My accounting department obtained the And I actually did My I How would you describe the business of MS. CENDALI: Objection. Outside the scope. 21 But go on. 22 A 23 business of Apple. 24 in the computer and software business. 25 Q I've never attempted to describe the I believe it is certainly Would you describe Apple as a book DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 (212)705-8585 31 1 E.D. Jay - 11/30/12 2 publisher? 3 A No. 4 Q Do you think the average consumer would 5 consider Apple to be a book publisher? 6 MS. CENDALI: 7 You can answer. Objection. 8 A I don't think so, no. 9 Q Dr. Jay, what did you set out to prove or 10 disprove in designing your study in this case? 11 A 12 disprove anything. 13 whether potential purchasers of softcover -- to 14 determine one way or the other whether 15 potential purchasers of softcover and hardcover 16 books are likely to be confused on whether 17 there is a likelihood of reverse confusion as 18 to the source, sponsor or affiliation of books 19 sold on the Internet with the iBooks imprint as 20 it appears in the marketplace. 21 22 I didn't set out to prove anything or THE WITNESS: I did a study to determine I think -- have we been going about an hour? 23 MS. CENDALI: You want to take a break? 24 Q 25 have one question that follows directly on the Could you just -- let me just -- because I DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 (212)705-8585

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