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)

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:

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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
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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

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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 [phone]

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 [phone]