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 C
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 t~ D 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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received permission or approval to put out that
3
product.
4
Q
And how about affiliation confusion?
5
A
I believe, as measured in an Eveready
6
format, that they would believe that two
7
products are -- come from the same source, that
8
the makers, or the source of two products is
9
related or they come from -- so if you go to
10
the classic -- I ask the classic question,
11
sometimes described as the gold Standard, the
12
question in the Eveready where you ask
13
respondents were shown, I think they were lamps
14
and mini light bulbs, or actually two surveys
15
in the Union Carbide case, and they were asked
16
to name any other products put out by the
17
concern that put out the product that they were
18
shown.
19
So that's effectively the same question
20
that I asked to find out whether there was an
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affiliation. So I asked the questions asked in
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Union Carbide, and supplemented them with an
23
additional question which Professor McCarthy
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sometimes refers to as the standard format
25
where you augment the Union Carbide formulation
DAVID FELDMAN WORLDWIDE, INC.
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people who purchased digital books tend to be
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purchasers of a lot of books, and the majority
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of them also purchase hardback and paperback
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books. And the stimulus they would see would
6
be virtually the same had they been showed a
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web page for a digital book.
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9
I do find it completely unsupported that
Professor Jacoby claims that somehow purchasers
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of digital books would be more likely to be
11
confused, because it doesn't appear that he's
12
read a lot about readers of digital books. PEW
13
Research Center has done extensive research,
14
and people who read digital books read more
15
books, on average, and they tend to purchase
16
and read books in multiple forms and not just
17
single forms.
18
So if I were to hypothesize, I would say
19
that readers of digital books are more
20
sophisticated. And, regardless, my universe
21
certainly includes people who read digital
22
books because the majority of people who read
23
digital books also purchased hardcover and
24
softcover books. And so to the extent that
25
they would be thinking about books, it's clear
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E.D. Jay - 11/30/12
hardcover or softcover books.
3
How about the converse; have you seen data
4
showing what the percentage of people who buy
5
hardcover and softcover books, what percentage
6
of those also buy digital books?
7
A
8
buying books. And I believe the recent surveys
9
have shown that about 72 percent of adults
You can just look at the universe for
10
purchased a hardcover or softcover book in the
11
last 12 months. So there's a large market for
12
hardcover and softcover books. About
13
17 percent of adults purchased digital books.
14
And based on data I've seen, is about
15
two-thirds of the people who purchase digital
16
books have also, or read softcover and
17
hardcover books.
18
But if you're going to the universe of
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book buyers, no question, the largest universe
20
for books are people who buy hardcover and
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softcover books. So many people who buy
22
hardcover and softcover books do not buy
23
digital books, but most people who buy digital
24
books also buy hardcover and softcover books.
25
So to the extent the universe includes
DAVID FELDMAN WORLDWIDE, INC.
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people who buy hardcover and softcover books,
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it would include people who buy digital books.
4
A lot of people would not buy digital books,
5
but that's merely because that's what the
6
universe is. If you want to project your data
7
to the majority of people who buy books in the
8
United States, it is hardcover and softcover
9
books.
Interestingly, if -- purchasers of
10
1l
digital, or people who have Apple products were
12
more apt to be confused. I would have expected
13
some differences by age, but yet young people
14
were no more apt to mention Apple or an Apple
15
product than were middle-aged adults and,
16
rather than saying "older," let's just say
17
mature adults, and that difference simply did
18
not exist.
So I think I am ready for a break now.
19
20
Q
Just one final question.
21
A
Sure.
22
Q
The PEW data, is that referenced anyplace
23
in your report?
24
A
25
No. It's not referenced in my report.
I am a reader of PEW data. As I testified
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 (212)705-8585
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day, but I believe that that would be entirely
3
inappropriate. You do not focus, when you do a
4
survey in a trademark like confusion,
5
respondents' attention on any particular
6
portion of the product, of a label, of a page.
7
Rather, as we instructed, and I want to
8
get the instructions clear, we said we wanted
9
to show respondents a page in Instruction C.
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I'm looking at deposition Exhibit 1, and it's
11
Appendix B.
12
So we showed respondents the page. We
13
asked people -- we told people: The page I'm
14
going to show you concerns a book sold on the
15
Amazon.com website. We told respondents to use
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the keyboard or mouse to look at or browse this
17
page the way you normally do when you are
18
deciding whether to buy a book.
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We told them to take as long as they would
20
like to look at or browse this page, and then
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we told them we were asking them questions
22
about the book described on the page.
23
So we did not direct respondents'
24
attention to the top of the paper, the bottom
25
of page, any particular portion of the page.
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 (212)705-8585
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from a little while back, some respondents
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answered the permission question, then,
4
thinking in terms of the written material in
5
the book and the author as being someone who
6
needed to give permission.
7
MS. CENDALI: Objection.
I don't think people talked about the
8
A
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written material in the book. There are some
10
people who said the author. I mean, I'm
11
confused about this because -- I'm not a
12
lawyer, but I understand there's a difference
13
between commercial speech and other forms of
14
speech. And this case, my understanding, is a
15
trademark case relating to commercial speech.
And the questions that I asked related to
16
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what I believe are commercial speech. And we
18
did not ask questions about the inside of the
19
book. We asked about the book. And
20
respondents answered the way they answered.
21
That was just the way they answered.
22
Q
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a book?
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A
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Sometimes they have people write the book for
Is the author someone who typically writes
Well, authors sometimes write the book.
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 (212)705-8585
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them and they are listed as the author. So
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authors may or may not have written the book
4
themselves. Many authors have written the
5
book, but there are certainly instances of
6
books that are, for the most part, written by
7
somebody else but, nevertheless, the author is
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named, sometimes in connection with
9
celebrities, sometimes for other reasons.
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So the author, I think people often think
11
of the author as the person who wrote the book,
12
but the author doesn't always have to have
13
written the book.
14
Q
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of Volume I of Exhibit 1, and specifically to
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Tables 10 and 11, in the first column it reads:
17
"Named specific authors or said, 'the author,'
18
or, 'the editor.'"
19
Calling your attention to Pages 28 and 29,
Do you see that?
20
A
Yes.
21
Q
What if someone had said, "the writer"?
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MS. CENDALI: Objection.
23
A
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that. It's -- I don't know whether anybody
25
actually said that.
I would have to see if somebody even said
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2
Q
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the computer tabs -- I think this is
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Appendix U, if memory serves. And it is
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Table 33, Page 39.
6
So in -- I'm looking now in Volume II, and
You don't have a specific code, though, a
7
separate code for the word "writer"; is that
8
correct?
9
A
Certainly not one that appears to be on
10
this table.
11
Q
12
permission question, the Question 3 series in
13
your study, in terms of, say, copyright law,
14
their answers don't tell you anything about
15
approval of the name "iBooks," do they?
For those respondents who answered the
MS. CENDALI: Objection.
16
The purpose of the sponsorship questions
17
A
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are sponsorship of the product. The trier of
19
fact will determine any legal issues relating
rME
to the use of the name. That is not a survey
21
question. It's very leading, very suggestive.
22
And the issue, I believe, if you look at
23
the standard format in Professor McCarthy's
24
treatise -- and, again, I don't use his exact
25
words because I'm a survey researcher and he is
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 (212)705-8585
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where we developed, helped develop the
3
questions for a community survey, even though
4
we didn't actually conduct the survey or
5
analyze the survey.
6
So we have sometimes developed questions.
7
And certainly sometimes an entity could retain
8
us to do one study, and then ask another entity
9
or another individual to do the study but still
10
use the questionnaire that we developed for the
11
study that we did, and yet they retained
12
another entity to do work.
13
I know we had done work in the high-tech
14
field where certain computer companies would
15
say: Here's the questions we ask when we work
16
with such and such. We want you to replicate
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those questions. Field has replicated
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questions that other entities did. I have no
19
doubt that some of those entities took the
20
questions that we asked and replicated them
21
using other entities for different reasons.
22
But whatever the reasons that -- actually, I
23
can give a good example because we developed
24
the first survey for the county -- it's sort of
25
a health inventory for the County of Los
DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 (212)705-8585
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