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

Filing 172

DECLARATION of Mary Mazzello in Opposition re: 77 MOTION to Preclude the Testimony of Defendant's Rebuttal Expert Witness Stephen M. Nowlis., 73 MOTION to Preclude the Testimony of Defendant's Expert Witness E. Deborah Jay.. Document filed by Apple Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Tab - Colby Dep, # 6 Tab - Jacoby Dep, # 7 Tab - Jay Dep, # 8 Tab - McDonald Dep, # 9 Tab - Nowlis Dep)(Cendali, Dale)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------X
JT COLBY AND COMPANY, INC., D/B/A
BRICK TOWER PRESS, J. BOYLESTON AND
COMPANY PUBLISHERS, LLC, AND
IPICTUREBOOKS, LLC,
Plaintiffs,
-against-

Index No.
11-CV-4060(DLC)

APPLE, INC.,
Defendant.
-------------------------------------X

VIDEOTAPED DEPOSITION OF
SUSAN SCHWARTZ MCDONALD
New York, New York
December 12, 2012, 9:56 a.m.

Reported By:
Nicole Sesta
Ref: 8606

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S. Schwartz McDonald

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so-called publisher or source of a book, I felt

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it was impossible to attach myself and my survey

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to any particular scenario.

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Q

Are you done with your answer?

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A

I believe so, yes.

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Q

I believe you stated in that

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answer that showing an actual book or web site

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listing offering one of plaintiff's books for

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sale would not do justice to the purchasing

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experience; is that what you said?

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A

To I believe the encounter, is the

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way I described it, between a consumer and a

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brand or a consumer and a product in the book

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purchasing environment, particularly with an eye

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to an understanding how both in the first

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instance and in subsequent occasions post sale a

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consumer might come to experience the source of

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a book.

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Q

Why wouldn't showing someone an

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actual book or an actual listing from Amazon or

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Barnes & Noble reflect how a consumer would

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encounter the mark?

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25

MR. RASKOPF:

Asked and

answered.

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S. Schwartz McDonald
A

I don't know about the last time

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you bought a book, but for me it involved

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handling a bunch of books.

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through a bookstore.

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still frequent them when I can.

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particular kind of mission.

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attraction between a consumer and a book, not

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just being handed a book out of context, not

It involved walking

They're hard to find but I
It involves a

It involves an

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necessarily based on interest or anything else

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here's a book.

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toothpaste.

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tomato sauce.

You can do that with a tube of

You can do that with a can of
You can't do that with a book.

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Q

Why not?

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A

Because it doesn't come close to

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approximating the first interaction that a

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consumer has, nor does it come close the second,

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the third, the fourth consumers if we're talking

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about printed books.

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again and again.

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book to go back to the forward to look at

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acknowledgements.

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represent my style of reading books as

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everyone's.

It's a point.

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individual.

A person can open a book many

Consumers them again and

My MO is after I've read a

I mean I don't want to

It's very

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S. Schwartz McDonald
times.

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The shopping becomes sort of a

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transition into the reading.

Books are

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experienced.

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even more complicated than talking about post

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sale confusion, which clearly book buying

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introduces as a very real possibility in a way

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you never see in toothpaste and shampoo.

They're not just purchased.

It's

Once

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people own those products they very seldom look

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at the trademark or look at the box again, and

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in fact as we know they almost never look at

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them in the way that these trademark surveys

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require them to look at it.

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view is that all these Lanham Act surveys are

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conceptual to one degree or another.

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hypotheticals of construct, the construct that's

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all they are.

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because of the importance of post sale

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confusion, because when a person picks up a book

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their first instinct is not to look for the

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publisher, nothing that happened in Dr. Jay's

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survey or Dr. Nowlis' survey represents book

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buying at all.

25

Q

So I have to say my

They're

In this case because of books,

What about your survey replicates

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S. Schwartz McDonald
at all book buying?
A

It doesn't.

What it does is it

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replicates an experience.

It picks a moment.

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It picks the moment when a consumer becomes

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aware that there is something in a book that

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identifies it, in a digital book in particular,

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that identifies it as iBooks.

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freely concede this.

It doesn't.

I

It doesn't tell you how

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often that occurs and it doesn't tell you the

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moment it occurs.

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opening.

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It could occur based on the appreciation of the

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consumer for the book, and that kind of

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revisiting as I described, very sincerely as

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something that happens when you go back.

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It could occur in the first

It could occur on the second reading.

I'm not stipulating as to when in

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the book experience it occurs, but it is

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absolutely something that can occur and nothing

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that happened in the research that your experts

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did replicates that market condition at all.

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Q

I'm moving to strike as

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nonresponsive any comments about our experts.

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didn't ask you about our experts.

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you, you admit that when someone purchases a

I'm asking

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I