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.
450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
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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?
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
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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
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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.
450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
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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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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.
450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
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2
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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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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
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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
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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.
DAVID FELDMAN WORLDWIDE, INC.
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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.
450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
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2
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,
DAVID FELDMAN WORLDWIDE, INC.
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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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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
DAVID FELDMAN WORLDWIDE, INC.
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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.
450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
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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
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099
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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.
DAVID FELDMAN WORLDWIDE, INC.
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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,
DAVID FELDMAN WORLDWIDE, INC.
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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
DAVID FELDMAN WORLDWIDE, INC.
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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?
DAVID FELDMAN WORLDWIDE, INC.
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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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2
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NOWLIS
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
DAVID FELDMAN WORLDWIDE, INC.
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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.
DAVID FELDMAN WORLDWIDE, INC.
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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?
DAVID FELDMAN WORLDWIDE, INC.
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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.
DAVID FELDMAN WORLDWIDE, INC.
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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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2
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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
DAVID FELDMAN WORLDWIDE, INC.
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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
DAVID FELDMAN WORLDWIDE, INC.
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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
DAVID FELDMAN WORLDWIDE, INC.
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