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)

EXHIBIT H

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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

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E.D. Jay - 11/30/12

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iBooks or they said something else, they would

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have been asked:

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can you be more specific; are there any other

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reasons why you think this.

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What makes you think this;

So we had multiple questions that

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permitted respondents to explain their answers,

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and that did not signal one way or the other

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that one answer was of more interest than

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another answer.

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Q

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set forth in this book survey report on this

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Exhibit 1, they are based on the study you

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conducted in this case, correct?

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A

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based on the study I conducted.

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have certainly seen other materials.

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I've seen Dr. Nowliss' survey report, which I

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believe actually supports the same conclusions

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as -- although he tested, I believe, post-sale

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confusion, and I tested reverse confusion, but

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both support, strongly support the conclusion

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that there is no likelihood of confusion.

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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 [phone]

100
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E.D. Jay - 11/30/12

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used -- was used in the Complaint, not a

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representation that is used with any frequency

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on the Amazon and Barnes & Noble website, not a

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representation that Dr. McDonald used, but a

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representation that includes a variety of

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information that would have been available to a

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purchaser, both in a point-of-purchase

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situation.

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And I should say I believe Professor, or

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Dr. Nowliss tested for point-of-sale confusion,

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as well as post-sale, because it would

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essentially be the same thing.

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looking at the book, and you would ask the same

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questions.

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somebody, the respondent, the book, it does say

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I, with a big B, but it has a variety of other

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information on it.

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way it appears with any frequency on either

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Amazon or Barnes & Noble, the specific websites

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described in the Complaint, and it's not the

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way it was -- appeared in the Complaint.

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Q

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ever seen a physical iBooks book before?

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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 [phone]