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

Filing 174

DECLARATION of Todd Anten in Support 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 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)(Chattoraj, Partha)

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EXHIBIT H 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 60 1 E.D. Jay - 11/30/12 2 iBooks or they said something else, they would 3 have been asked: 4 can you be more specific; are there any other 5 reasons why you think this. 6 What makes you think this; So we had multiple questions that 7 permitted respondents to explain their answers, 8 and that did not signal one way or the other 9 that one answer was of more interest than 10 another answer. 11 Q 12 set forth in this book survey report on this 13 Exhibit 1, they are based on the study you 14 conducted in this case, correct? 15 A 16 based on the study I conducted. 17 have certainly seen other materials. 18 I've seen Dr. Nowliss' survey report, which I 19 believe actually supports the same conclusions 20 as -- although he tested, I believe, post-sale 21 confusion, and I tested reverse confusion, but 22 both support, strongly support the conclusion 23 that there is no likelihood of confusion. 24 25 Your conclusions and opinions that you've Well, the conclusions in the report are Since then, I Certainly I have seen Dr. McDonald's survey, which I believe has even more flaws than Professor DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 (212)705-8585 100 1 E.D. Jay - 11/30/12 2 used -- was used in the Complaint, not a 3 representation that is used with any frequency 4 on the Amazon and Barnes & Noble website, not a 5 representation that Dr. McDonald used, but a 6 representation that includes a variety of 7 information that would have been available to a 8 purchaser, both in a point-of-purchase 9 situation. 10 And I should say I believe Professor, or 11 Dr. Nowliss tested for point-of-sale confusion, 12 as well as post-sale, because it would 13 essentially be the same thing. 14 looking at the book, and you would ask the same 15 questions. 16 somebody, the respondent, the book, it does say 17 I, with a big B, but it has a variety of other 18 information on it. 19 way it appears with any frequency on either 20 Amazon or Barnes & Noble, the specific websites 21 described in the Complaint, and it's not the 22 way it was -- appeared in the Complaint. 23 Q 24 ever seen a physical iBooks book before? 25 A You would be So whether you were showing And as I say, it's not the Before today, before right now, had you Yes. DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 (212)705-8585

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