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

Filing 78

DECLARATION of Claudia T. Bogdanos in Support re: 77 MOTION to Preclude the Testimony of Defendant's Rebuttal Expert Witness Stephen M. Nowlis.. 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, # 10 Exhibit J, # 11 Exhibit K)(Chattoraj, Partha)

EXHIBIT J

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,
No. 11-cv-4060 (DLC)

vs.
APPLE, INC.,
Defendant.

-----------------------------x

DEPOSITION OF STEPHEN M. NOWLIS
Friday, December 14, 2012
New York, New York

Reported by:
Maureen Ratto, RPR, CCR, CLR
Job No: 27929

1

NOWLIS

2

95% confidence level and if you have a

3

error of .01, meaning 10%, then you

4

have a 90% confidence level. So 90%

5

you're pretty sure and 95% most people

6

would say they're sure. This is a

7

generalization, there can be exceptions

8

to this.

9

Q.

Dr. Nowlis, why did you include

10

this permission question in your study

11

in this case?

12

A.

Because I was testing for

13

Likelihood of Confusion and this was

14

one of the ways that I did it.

15

Q.

What is your understanding of

16

the issue to which the permission

17

question in your study was directed?

18

A.

Well, my permission or approval

19

question was getting at this idea of

20

sponsorship, whether they thought

21

another company had sponsored the use

22

of this term.

23
24
25

Q.

Have you used this question

before in other trademark studies?
A.

I believe that I have. I don't

DAVID FELDMAN WORLDWIDE, INC.
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NOWLIS

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believe I've done Likelihood of

3

Confusion surveys for other matters but

4

as far as I know none of those have

5

ever been produced, in certain cases

6

because I did a study and the results

7

weren't what somebody wanted to see so

8

they -- you know, they didn't produce

9

them. But as far as I know, I don't

10

think that any of my Likelihood of

11

Confusion surveys have ever been

12

produced.

13
14
15
16

Q.

And how many Likelihood of

Confusion studies have you done?
A.

Three or four prior to this I

would say, roughly.

17

Q.

Any for Apple?

18

A.

No.

19

Q.

How about secondary meaning

20

studies, have you done any secondary

21

meaning studies?

22

A.

Yes.

23

Q.

How many, roughly?

24

A.

Two or three, maybe.

25

Q.

Have any of those been produced?

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2

NOWLIS
A.

Whether someone would be

3

confused due to impressions of

4

affiliation.

5
6
7
8

Q.

What do you mean by "impressions

of affiliation"?
A.

Whether they think the companies

were affiliated.

9

Q.

Do you own any Apple products?

10

A.

Yes.

11

Q.

What do you own?

12

A.

I have an iPhone and I have an

13
14
15
16
17
18

iPad and I have Apple earphones.
Q.

So is it fair to say that you're

pretty familiar with Apple products?
A.

I think I'm fairly familiar with

them.
Q.

If you had to ascribe a noun to

19

the iPhone, what would that noun be?

20

An iPhone is a what?
MS. CENDALI: Objection. You

21
22

can answer.

23

A.

An iPhone is a device.

24

Q.

Can you be more specific?

25

A.

Well, you said to give you a

DAVID FELDMAN WORLDWIDE, INC.
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NOWLIS

2

buy something I think it says,

3

"sending," it takes five seconds, and

4

then it will say "Your sample has now

5

been received on your Nook. You may

6

now open it and look at it. I think

7

they use the word "sending" but I'm not

8

sure.

9
10

Q.

business of Apple?
MS. CENDALI: Objection.

11
12

How would you describe the

A.

I would say Apple is a -- in a

13

very general sense, a computer company

14

-- well, a computer company that sells

15

-- that sell phones, they sell

16

computers, they sell iPads, so I guess

17

I would call it a computer company.

18
19

Q.

Do you consider Apple to be a

book publisher?

20

A.

No.

21

Q.

From the data generated from

22

your study, is it your opinion that

23

consumers consider Apple to be a book

24

publisher?

25

A.

No.

DAVID FELDMAN WORLDWIDE, INC.
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NOWLIS
Q.

So is it your opinion that

3

consumers don't consider Apple to be a

4

book publisher, am I saying it right?

5
6
7

A.

You are correct. They do not

see it as a book publisher.
Q.

How about a company that prints

8

books? Do consumers consider Apple to

9

be a company that prints books?

10

A.

No.

11

Q.

A company that releases books?

12

A.

No.

13

Q.

A company that puts out books?

14

A.

No.

15

Q.

A company that sells books?

16

A.

A company that sells books? I

17

did not ask that question. I asked the

18

questions you were talking about

19

before, prints, releases or puts out.

20
21
22

Q.

So you're not able to answer the

question? Is that -A.

Sell books? I mean, is it --

23

you can say they -- yeah, they sell

24

books and they distribute books through

25

the -- their bookstore, but they don't

DAVID FELDMAN WORLDWIDE, INC.
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2

print, release or put out. That's what

3

people -- how people responded in my

4

survey.

5

Q.

My question was not necessarily

6

what Apple does but what consumers

7

think of Apple as doing.

8
9
10

So do you think consumers
perceive Apple as a company that sells
books?

11
12

MS. CENDALI: Objection.
A.

I -- I never asked consumers

13

that, so I'm not quite sure how -- how

14

they would respond to that question.

15

Q.

Well, you also didn't ask them

16

if Apple published books but you were

17

able to answer my question about

18

publishing?

19
20

MS. CENDALI: Objection.
A.

In my opinion, when my questions

21

about prints, releases or puts out were

22

questions about publishing. So I

23

believe I did ask that question.

24

Q.

25

you?

What does "puts out" mean to

DAVID FELDMAN WORLDWIDE, INC.
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2
3

NOWLIS
A.

Puts out, I'm not quite sure

what you want me to tell you.

4

Q.

Can you try?

5

A.

I can't give you more than that.

6

It means "puts out" and respondents

7

were free to interpret that however

8

they wanted.

9

Q.

You chose the words?

10

A.

Right.

11

Q.

Was your thought process that

12

"puts out," means physically puts a

13

product on a shelf someplace?

14

A.

No.

I'm sorry. I see what

15

you're saying. Puts out would be some

16

sort of an indicator of the source of

17

the book. They have something to do

18

with the source of the book.

19

Q.

20

Could that term encompass sales?
MS. CENDALI:

Objection.

21

Q.

Or selling?

22

A.

Could that term encompass

23

selling of the book?

24

would have been a separate question.

25

Q.

No.

That -- that

So puts out, then, in your mind,

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NOWLIS

2

Q.

How many times?

3

A.

Boy, I'm really not sure. I'm

4

going to take a guess, 30 times. I

5

really don't know.

6

Q.

How many in trademark cases?

7

A.

I'm not sure.

8

Q.

Can you give a rough number?

9

A.

I wish I could help you. I just

10
11

honestly don't know.
Q.

And you consider your study in

12

this case to be a rebuttal study? Is

13

that correct?

14

A.

I wrote a rebuttal report and as

15

part of my report I conducted a study,

16

so those are one in the same.

17

Q.

So back to my earlier question

18

of if you've ever done a rebuttal study

19

before, what is your answer?

20

A.

Okay. I think what you mean is

21

when I wrote a rebuttal report did I

22

include in that a survey? Is that what

23

you are getting at?

24

Q.

Yes.

25

A.

Fair enough. I don't recall.

DAVID FELDMAN WORLDWIDE, INC.
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2
3
4
5
6
7

NOWLIS
Q.
have?
A.

10

That is possible. I simply

don't remember right now.
Q.

What did you set out to prove or

disapprove in designing your study?
MS. CENDALI: Objection.

8
9

Is it possible that you never

A.

My study was designed to examine

issues of Likelihood of Confusion.

11

Q.

For what mark?

12

A.

For iBooks. Again, it was done

13

as a rebuttal to the prior survey, to

14

point out what I thought were flaws

15

with the original survey and had to do

16

what I thought was a more proper way of

17

examining the issues.

18
19

Q.

By "original survey," do you

mean the survey of Dr. Susan McDonald?

20

A.

Yes.

21

Q.

Okay. Did anyone assist you in

22

creating the questions for your study?

23

A.

No.

24

Q.

When was your first

25

communication with counsel about this

DAVID FELDMAN WORLDWIDE, INC.
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NOWLIS

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examination to see whether those seven

3

people are included among the 66 in

4

Table 1?

5

A.

Yes. You can do that analysis.

6

Q.

But without doing that analysis,

7

one is not able to simply add 66 and

8

seven and say "73 respondents commented

9

or named iBooks"?

10

A.

You are correct.

11

Q.

How did you come up with the

12
13
14

words "puts out"?
A.

I thought it was the right thing

to do.

15

Q.

Have you used it before?

16

A.

I -- I'm not sure. I think I

17

probably have. I also looked at what

18

other people have done and I thought it

19

made sense to do that in this case as

20

well.

21

Q.

Can you name for me a study you

22

looked at that used the words "puts

23

out," the words "puts out"?

24
25

A.

Not now, I can't, no. I've seen

it used before, though, a number of

DAVID FELDMAN WORLDWIDE, INC.
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3
4
5

NOWLIS

A.

I was asked to provide a

rebuttal report to Dr. McDonald.
Q.

Were you asked to conduct a

study?

6

A.

No.

7

Q.

You've testified that you've

8

submitted a number of, you know,

9

roughly, 30 rebuttal reports prior to

10

this one. Is that right?

11

A.

That was a guess.

12

Q.

A guess, of course.

13

A.

I'm guessing.

14

Q.

And, am I correct, forgive me,

15

that you didn't recall the number of

16

those that involved a study as well or

17

was there a number?
A.

You are correct, you really

19

don't recall if I've done a survey as

20

part of a rebuttal report prior to

21

this.

22
23
24
25

Q.

What about Dr. McDonald's report

made you -- caused you to do a study?
A.

Because I thought that her

methodology was very flawed, which I

DAVID FELDMAN WORLDWIDE, INC.
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NOWLIS
Q.

If you could look, please, on

3

page 35 of your report, and the

4

reproduction there, do you see how

5

iBooks, Inc., first appears on this

6

page?

7

A.

It first appears as "An original

8

publication of ibooks" -- all lower

9

case -- "Inc." -- lower case, period.

10

Q.

But yet, you avoided the word

11

"published" in your questions to

12

respondents, despite iBooks appearing

13

here as an original publication of

14

iBooks, Inc. Is that right?

15
16
17

18
19
20

MS. CENDALI: Objection.
A.

I did because I didn't want to

do a reading test.
Q.

What do you mean by "a reading

test"?
A.

A reading test is where you ask

21

somebody, for example, "What's the

22

brand of this product," and they look

23

at the package and they say, "Oh, the

24

brand is Poland Springs." So I didn't

25

want to do a reading test.

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NOWLIS
carefully analyzing that.
Q.

But you carefully analyzed

4

Dr. McDonald's original report. Is

5

that right?

6

A.

Absolutely.

7

Q.

Is your study a probability

8
9
10
11
12

study?
A.
study.
Q.

15
16
17
18

Is it a probability study,

though?

13
14

It is a likelihood of confusion

MS. CENDALI: Objection.
A.

I'm not sure what you mean by

"probability study"?
Q.

Have you heard that term before,

"probability study"?
A.

I've heard of it but I think it

19

can mean different things. That's why

'S

I'm not quite sure what you mean by

21

that.

22

Q.

Well, what is your understanding

23

of the term or the various meanings

24

that the term can have?

25

MS. CENDALI: Objection.

DAVID FELDMAN WORLDWIDE, INC.

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NOWLIS

A.

Where -- a probability study

3

could be examining probabilities. I

4

mean, you could -- where you would

5

measure some degree of error perhaps.

6

I mean, that term, itself, can mean

7

different things so, again, it's hard

8

for me to give you a clear answer,

9

again, without some context. It's sort

10

of like saying "What is a survey?" I

11

mean, I can give you a sort of very

12

general response but I'm not quite sure

13

where you're getting at.

14

Q.

How about in the area of

15

statistics, what does "probability

16

study" mean to you?

17

A.

Where you would try to identify

18

the opinions of people around some

19

confidence error.

20
21
22

Q.

Did you do that in your study in

this case?
A.

In my study, what I did was I

23

compared the results of my test group,

24

minus my control group as a way to

25

determine any potential confusion.

DAVID FELDMAN WORLDWIDE, INC.
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NOWLIS

Q.

So that's not a probability

3

study, the way you defined it in terms

4

of statistics? Is that right?

5

A.

Well, again, in my opinion we're

6

in an ambiguous situation here. If I

7

was reviewing a paper, The Journal of

8

Marketing Research and somebody said,

9

"I did a probability study." We would

10

respond to that author, "Well, what do

11

you mean by that? I mean, that's a

12

very broad term. What exactly did you

13

do?"

14

Then if they came back and said,

15

"Well, I had this, and I conducted this

16

and so on and so on."

17
18

Well, we'd say, "Oh, okay, we
see where you're getting at."

19

It's just such an ambiguous term

20

without context it's hard for me to say

21

"yes" or "no" without knowing what

22

other additional information is needed.

23

Q.

If an expert in statistics were

24

reviewing your study the way you review

25

the papers of your -- your students,

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would that statistical expert consider

3

your study to be a probability study?

4
5

MS. CENDALI:
A.

Objection.

They would consider it to be a

6

study with a test group and a control

7

group.

8
9
10
11

Q.

So is that a yes to a

probability study or a no to a
probability study? Which is it?
A.

I'm not quite sure what they

12

would say. If I said, "I did a

13

probability study."

14
15

They would say "What do you mean
by that?"
"Well, I had a test group and a

16
17

control group."

18
19
20

"Oh, okay. I see what you
mean."
If I said I did a probability

21

study but I didn't have a control group

22

or my interpretation was to do this,

23

that or the other thing they may say,

24

"Oh, I know what you mean by that term.

25

I think that term in and of itself has

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2

meaning to -- that everybody would

3

immediately know what that means.

4
5

Q.

You did a mall intercept study,

right, a mall intercept study, correct?

6

A.

Yes.

7

Q.

Have you ever done a mall

8

intercept study that you would consider

9

to be a probability study as that term

10

is used in the statistics field?
MS. CENDALI: Objection.

11
12

A.

The mall intercept studies that

13

I've done prior to this, from what I

14

can recall, they were all the same type

15

of design, where we had a test group

16

and a control group and we could get at

17

the difference between those to give us

18

confidence in the results. That was

19

sort of a way of getting at the error

20

by removing the error from the test

21

group by using the control group.

22

Q.

In general, are you able to

23

answer the question of whether mall

24

intercept studies are considered to be

25

probability studies in general, not

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yours in particular, but just in

M

general?
MS. CENDALI: Objection.

4
5

A.

Again, I think it depends what

6

we mean by a, quote/unquote,

7

probability study. I -- I don't think

8

that that term by itself -- I know -- I

9

think -- I'm trying to get at this and

10

that you think there is a technical

11

meaning that everybody ascribes to it,

12

I don't think that's true. As I

13

mentioned before, I review a lot of

14

papers and I don't think I've seen

15

people just say, "Oh, probability

16

study," and everybody say "I know what

17

you mean." They would give more
detail. They would say what they did

19

and, "Oh, okay, I know what they're

20

talking about now."

21

Q.

Well, in terms of what you did

22

in your study, what is the probability

23

that any one of the respondents in your

24

study was selected for inclusion in

25

your universe?

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3

MS. CENDALI: Objection.
A.

What is the probability that

4

they were included in the universe?

5

Well, I screen for people and I only

6

screen for people that would be in the

7

universe. There were other people that

E? s

didn't match the screening that were --

9

that were not -- that did not become

10

part of the survey. I don't know how

11

many people were screened and they say,

12

"Well, you can't be apart of this

13

study," and moved on. Is that the

14

question you're asking me?

15

Q.

So am I understanding you, then,

16

that you don't know what the

17

probability is or is it that there's no

18

way of knowing what the probability is

19

of an individual selected for inclusion

20

in your universe?

21
22

MS. CENDALI: Objection.
A.

Well, the universe that I

23

considered, we went through my

24

screening questions and exactly what

25

they were. What percentage of that, of

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the entire population, I don't know

M

what those numbers are. I don't know

4

if anybody would be able to identify

5

that. Is it 10%? 20%? I'm not sure.

6

I didn't want to get everybody. I

7

wanted to get the relevant consumers to

8

answer the question.

9
10
11

Q.

How would you define "the

universe" for your study?
A.

Well, I mean, I -- I screen

12

based on a certain criteria and those

13

screening criteria would give us the

14

universe. So we can go through my

15

screener and you'll see what I screened

1.6

on and that would be my universe.

17

Q.

In your own words as the person

18

who designed the study, how would you

19

define "the universe"? Feel free to

20

refer back to your report, but in your

21

definition, what is your definition of

22

"universe" in your study?
MS. CENDALI: Objection.

23
24
25

A.

And, again, I try to be as

careful as I can in these things and

DAVID FELDMAN WORLDWIDE, INC.
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give you exactly what I did, so I don't

3

misstate something so we can go through

4

my survey and that would be fine. And

5

I screened based on different criteria,

6

I screened for people who would be

7

likely to buy a paperback or hardback,

8

who would buy a biography, history,

9

science fiction or comic or graphic

10

novel, people who would buy a book at a

11

shopping mall, airport, bookstore or

12

flea market. I didn't include people

13

who worked at the mall. I didn't

14

include other people.
So the universe would be the

15
16

people that fit this criteria. I guess

17

you could call these in a general

18

sense, people who buy physical --

19

certain kinds of physical books through

20

brick-and-mortar stores.

21
22
23
24
25

Q.

And these were anybody in the

country?
A.

Yes. This was done -- this was

done at malls throughout the country.
Q.

But not everywhere around the

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country, it was only in certain malls,

3

correct?

4
5

A.

True. Those malls were meant to

represent the U.S. population.

6

Q. So what is the probability that

7

a book buyer living in Omaha, Nebraska,
was included in your study?
MS. CENDALI: Objection.

9
10

A.

The probability that a book

11

buyer in Omaha, Nebraska? I don't

12

recall -- I don't think -- I don't

13

think I used malls in Omaha, Nebraska,

14

but let me double check so I can make

15

sure that I can give you the most

16

accurate response I can.

17

I did not include Omaha,

18

Nebraska. Again, this is what is survey

19

does, this is why it's a typical

20

survey. We don't -- it's -- this

21

happens all the time with the election,

22

say, 50 million people vote. We don't

23

survey all 50 million people. We

24

survey a sample of those 50 million

25

people and that allows us to

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extrapolate for the population. It's

3

the same thing I did here.

4

So by looking at the malls that

5

I did, which were across the country,

6

this would then allow me to extrapolate

7

for other people who didn't participate

8

in the survey, but we know based on

9

survey principles they would likely

10
11
12

have the same opinion.
Q.
zero?

13
14
15
16

So is the answer to my question

MS. CENDALI: Objection.
A.

Could you remind me of your

question again?
Q.

What the probability was that a

17

book buyer in Omaha, Nebraska, was

18

selected for inclusion in your study's

19

universe, in your study?

20

A.

Yeah. They -- they would --

21

they did not participate in it but

22

their opinions would likely be the same

23

as the result that I got, if I had

24

surveyed them. That's a basic

25

statistical principle. We all do that.

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I don't know of any survey that -- that

3

surveys every single person in the

4

population. I've never seen that

5

before.

6

Q.

On page 17, of your report,

7

paragraph 14 -- sorry, paragraph 40 --

8

so this is Exhibit No. 1, page 17,

9

paragraph 40.

10

MS. CENDALI: Page 17?

11

THE WITNESS: 4,0.

12

THE REPORTER: 40 or 14?

13

MS. BOGDANOS: Sorry. I said the

14

wrong number first. Sorry. I misspoke

15

myself. So Exhibit 1, page 17,

16

paragraph 40.

17

Q.

You have a criticism of

18

Dr. McDonald here that she chose to

19

show the word iBooks in the same text

20

the rest of the online questionnaire.

21

A.

Yes.

22

Q.

Could you explain that criticism

23

24
25

to me, please?
A.

Okay. The criticism would be

that it is, again, extremely important,

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So I said would they buy

3

paperback or hardcover and what type of

4

book would you buy? And then, where

5

would you purchase a book? So, I'm

6

sorry, your question was, would they

7

buy electronic books?

8
9

MS. BOGDANOS: Could we have the
question read back, please?

10

(Whereupon, a portion of the

11

proceedings is read back by the

12

reporter.)

13

A.

Right. I don't exclude for

14

that. In other words, if it says do you

15

read digital books you're not allowed

16

to be in it. You are, in part of the

17

-- this survey, if you read physical

18

books, and we know from research that

19

the Pew Study that people have been

20

talking about, that I believe there is

21

an 88% overlap between people who buy

22

hardback or paperback books and who

23

read electronic books. So because we

24

know there's a big overlap, there's a

25

very, very, you know, large percentage

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of people that would read electronic

3

books that would also be included in my

4

study.

5

Q.

There's no question in your

6

study, though, that asks, specifically,

7

about reading electronic books, is

8

there?

9

A.

There is not.

10

Q.

Nor is there a question in your

11

study that asks about purchasing

12

electronic books, is there?

13

A.

There is not. But -- right. I

14

didn't exclude -- in other words, I

15

didn't exclude those people. They were

16

allowed to be part of my survey.

17

Q.

Did you consider readers of

18

electronic books to be relevant to your

19

universe?
MS. CENDALI: Objection.

20
21

A.

Well, the universe was defined,

22

as I did here, because these would be

23

the people that would be most, you

24

know, relevant for the book that I

25

showed them.

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However, we can extrapolate from

3

these results two people who would also

4

buy electronic books because we know

5

from research that there is a big

6

overlap between them.

7

(Nowlis Exhibit 6, a project of

8

the Pew Research Center, a study

9

entitled "The Rise Of E-Reading" was

10

received and marked on this date for

11

identification.)

12

Q.

Dr. Nowlis have you ever seen

13

what's been marked as Exhibit 6 before

14

today?

15

A.

Yes.

16

Q.

What is it?

17

A.

This is a study, a project of

18

the Pew Research Center and this study

19

is entitled, "The Rise Of E-Reading"

20

and it says, "21% of Americans have

21

read an e-book," and it goes on. I'll

22

stop there.

23

Q.

You testified before that -- I

24

don't have your exact number committed

25

to memory, I apologize, a number in the

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80% -- that 88% of people who read

3

print books also read electronic books?

4

A.

My memory from the study, if my

5

memory serves me right is that there

6

was an 88% overlap between those two

7

groups.

8

Q.

Well, let's take a look at page

9

3 of Exhibit 6, the middle paragraph,

10

the paragraph that begins "Those who

11

have taken the plunge," and you see the

12

second sentence and after the colon in

13

the second sentence it says, "88% of

14

those who read e-books in the past 12

15

months also read printed books"?

16

A.

I do.

17

Q.

So that does not mean that 88%

18

of those who read hardback, you know,

19

paper books, printed books, also read

20

e-books, so the converse is not

21

necessarily true, correct?

22

A.

I suppose. It -- it's possible

23

but that's how I interpret that, that

24

there is an overlap between the two

25

groups of 88%. That's my interpretation

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of that. In other words, say, a huge

3

overlap. In other words, there are

4

very few people that only read one type

5

or the other.

6

Q.

If you could take a look,

7

please, at page 4 of the Pew report,

8

the bottom of the page there is a

9

heading "The prevalence of e-book

10

reading is markedly growing but printed

11

books still dominate the world of book

12

readers." Do you see that?

13

A.

I do.

14

Q.

And it goes on to say "72% of

15

American adults had read a printed book

16

and 11% listened to an audio book in

17

the previous year compared to 17% of

18

the adults who have read an e-book."

19

Do you see that?

20

A.

Yes.

21

Q.

Does that change your opinion?

22

Does that change your testimony about

23

the overlap that you perceive or

24

understand between e-books and printed

25

books?

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A.

No. And it also supports my

3

earlier point that you asked me about

4

before, about why did I pick a printed

5

book for my study and this shows 72% of

6

the adults have read a printed book,

7

which is by far the most common kind of

8

book.

9

Q.

Is it possible that someone

10

who's a reader of an e-book might

11

respond differently to the stimulus in

12

your study than someone who is a reader

13

exclusively of printed books?
MS. CENDALI: Objection.

14
15

A.

Again, anything is possible. I

16

try to live in the world of probable

17

and because in this case there is such

18

a great overlap amongst the -- both

19

people, they -- that read both types,

20

so if somebody is going to read a

21

printed book, they're also going to

22

ready an electronic book, and I see no

23

reason why they would respond

24

differently if they read both kinds of

25

books.

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source question then?
A.

Just a -- I mean that the way

4

that I asked the questions, these are

5

different angles, I'm trying to get at

6

the same underlying construct of

7

confusion. There is three different

8

ways of doing that to give a consumer

9

the full ability to point out confusion

10
11

if it exists.
Q.

Let's talk about the first two

12

for now. And I'm trying to understand

13

your understanding of the difference

14

between "source confusion" and

15

"affiliation confusion."

16
17

So if someone -- if someone
answered "yes" to Question 2-A of your
study, did they think that the company

19

or companies that printed, released or

20

put out this book have made or put out

21

other things besides books. And let's

22

say that that person in answering

23

Question 2-B identified an iPad or

24

iPhone or an Apple product. Then, what

25

that person is expressing is an

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understanding that the same company put

3

out both the book that they were shown

4

and the Apple product the they named.

5

Is that right?

6
7

MS. CENDALI: Objection.
A.

It would be that the same

8

company that has the, in this case, the

9

iBooks mark, imprint, whatever we're

10

going to call it, is affiliated with

11

Apple because Apple sells the same

12

products.

13

Q.

But I'm not understanding where

14

you get the concept of "affiliation"

15

from a set of answers that says that

16

the company that made -- that printed,

17

released or put out this book, also

18

makes or puts out other things besides

19

books.

20

A.

Right.

21

Q.

I don't understand where the

22

second company enters that picture. To

23

me it sounds like the same company and

24

two different kinds of products. Could

25

you enlighten me?

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3

MS. CENDALI: Objection.
A.

Well, I mean we can go through

4

the question word for word if maybe

5

that would help.

6

Q.

Okay.

7

A.

So the question is now "With

I-M

respect to the company or companies

9

that printed, released or put out this

10

book, do you think they have made or

11

put out other things besides books," so

12

I'm having trouble understanding your

13

question because it seems pretty clear

14

to me if they said okay,

15

hypothetically, they could say, okay,

16

what company put this out, it's iBooks,

17

also they put out an iPad. Okay. So

18

that's an interpretation of they're --

19

they've affiliated the product that

20

Apple put out, its iPad would be

21

affiliated with iBooks in this case.

22
23

Q.

question?

24
25

So it's a product affiliation

MS. CENDALI: Objection.
A.

I mean it's affiliated in the

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sense that this is a company that puts

3

out these products so you're

4

affiliating with a company through its

5

products.

6

Q.

Have you ever encountered any

7

other form of affiliation question in

Im

any cases in which you've worked as a

9

survey expert?

10

A.

I'm really not sure. I may

11

have, I may not have. I don't -- I

12

can't tell you right now.

13

Q.

Do you read articles or other

14

writings on survey evidence in

15

trademark litigation? Are you up on

16

the literature in the field?

17
18
19
20

MS. CENDALI: Objection.
A.

Literature, meaning do I follow

legal opinion?
Q.

No. Scholarly articles,

21

scientific pieces, just written work

22

concerning trademark surveys for

23

litigation?

24
25

MS. CENDALI: Objection to the
form. You can answer.

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A.

Yes. And I cited that

3

throughout my report. I have many

4

citations to -- you know, there is a

5

book Trademark and Deceptive

6

Advertising Surveys, which I cite many

7

times.

8

Q.

Is that Jerry Swan's book?

9

A.

These are different chapters

10

from different authors. I don't

11

remember if Jerry Swan is the editor --

12

edited it or not, but different

13

chapters are by different people so he

14

did not write the whole book. I think

15

he wrote a chapter.

16

Q.

So in the different chapters

17

that you cite, or in any writings with

18

which you're familiar that you haven't

19

cited, where do you find support for

20

the type of affiliation question that

21

you asked, as being an affiliation

22

question as opposed to a question that

23

tells you more about the source of the

24

product?

25

MS. CENDALI: Objection.

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Overbroad.
A.

My understanding is that this

4

question was asked in the original

5

Eveready case?

6

Q.

And my question is: In what

7

writings or other literature concerning

8

trademark surveys for litigation have

9

you seen this type of affiliation

10

question presented as a proper way of

11

measuring Lanham Act affiliation?

12
13
14
15

MS. CENDALI: Objection.
A.

I don't think I could point

something out to you right now.
Q.

Have you ever seen a different

16

variety of affiliation question in any

17

of the writings that you've read?

18

A.

I believe that I have.

19

Q.

Now, if a respondent in your

20

study thought that there was another

21

company involved in some way, but that

22

it wasn't the company that actually,

23

you know, printed, released or put out

24

the book, is there a question in your

25

study to get at that perception?

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its own separate company, and it's

3

plain they don't think of Apple as a

4

book publisher as the -- the data from

5

your study shows that, correct?

6

A.

Yes.

7

Q.

So where in your study -- let me

8

withdraw that.

9

How does your study capture, if

10

at all, the perception a respondent may

11

have that iBooks is the publishing arm

12

of Apple in my hypothetical?

13
14

MS. CENDALI: Objection.
A.

Well, again, there's different

15

-- there's three different questions.

16

If there's some subtlety in those

17

components and in who owns what and how

18

one is related to the other, they have

19

three different ways of getting at

20

confusion, right? Maybe they -- maybe

21

they thought they received permission

22

or approval from the parent to -- to,

23

you know, house the distributor. Maybe

24

they thought it was put out by the --

25

the big company.

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Q.

-- where instead of the name

3

being "iBooks," the name was "Apple,"

4

and if someone simply said, "Apple,"

5

which means they read it on the page --

6

A.

Right.

7

Q.

-- but then in asking the what

8

else besides books, they thought Apple

9

-- they thought the company that had

10

printed, released or put out the book,

11

had made or put out --

12

A.

Right.

13

Q.

-- if that person, then, named

14

technology items or said, "iPhone,

15

iPad, iTunes devices," that would give

16

you more information as to what they

17

meant by Apple?
MS. CENDALI: Objection.

18
19

A.

Yes. Just like they would in my

20

test, the same idea, they would then be

21

able to say "iPad, iPhone," or

22

whatever, and that would give us more

23

information.

24
25

Q.

And it gives more information

about the company that put out the

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book?

3
4

MS. CENDALI: Objection.
A.

It gives more information about

5

the products that that company puts out

6

so you would be affiliated through

7

those products.

8
9

Q.

If in your study, a respondent

thought that iBooks, Inc., or that

10

iBooks was the publishing arm of Apple,

11

and they don't think of Apple as a book

12

publisher, if they are asked with

13

respect to the company or companies

14

that printed, released or put out this

15

book -- and so this is really going

16

back to the answer they gave to

17

Question 1, and so if they had named

18

iBooks -- and so it's really asking

19

with respect to iBooks, and with

20

respect to this book-making company

21

that you -- you've named or book

22

releasing or book printing or all the

23

words there, do you think they made or

24

put out other things besides books?

25

Now, if Apple, if iBooks, excuse

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testimony, but do you consider that the

3

words "printed, released, or put out"

4

embody the notion of publishing?

5
6
7

A.

Yes. I think that's a fair

statement.
Q.

Okay. And your data show, do

8

they not that, consumers don't think of

9

Apple as a book publisher, and we've

10

been down this path, correct?

11

A.

Yes.

12

Q.

Okay. So moving on from

13

question No. 1, which is the source

14

question in your study, right?

15

A.

Yes.

16

Q.

Okay.

17

A.

Once, again, people had the

18

opportunity to say anything they want.

19

Q.

Okay.

20

A.

They could have said, "Apple,"

21

they could have said whatever --

22

anything they wanted.

23

Q.

Okay. Now, do you think it's a

24

reasonable statement that if people

25

consider company A to be a subsidiary

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respondents who might think that iBooks

3

is a subsidiary of Apple but that the

4

two companies are separate, though

5

related?

6
7
8
9

MS. CENDALI: Objection.
A.

No. That is not what -- that is

not what it was designed to test.
Q.

Is it your understanding as a --

10

as a survey expert in trademark cases,

11

that such a perception on the part of a

12

respondent, that that indicates

13

confusion?

14
15
16
17

MS. CENDALI: Objection.
A.

Such a response, would --

meaning in what response?
Q.

I'm going back to my earlier

18

question about the perception in the

19

minds of respondents.

20
21
22
23
24
25

MS. BOGDANOS: Maybe -- maybe we
can have that question read back.
THE REPORTER: Which question?
The last question?
MS. BOGDANOS: No. The -- a
little bit more back. The question

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