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

••
1

E.D. Jay - 11/30/12

2

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

21

affiliation. So I asked the questions asked in

22

Union Carbide, and supplemented them with an

23

additional question which Professor McCarthy

24

sometimes refers to as the standard format

25

where you augment the Union Carbide formulation

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

142 1
1

E.D. Jay - 11/30/12

2

people who purchased digital books tend to be

3

purchasers of a lot of books, and the majority

4

of them also purchase hardback and paperback

5

books. And the stimulus they would see would

6

be virtually the same had they been showed a

7

web page for a digital book.

8
9

I do find it completely unsupported that
Professor Jacoby claims that somehow purchasers

10

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

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

144 I
1
2

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

19

book buyers, no question, the largest universe

20

for books are people who buy hardcover and

21

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.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

145 I
E.D. Jay - 11/30/12

1
2

people who buy hardcover and softcover books,

3

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 [phone]

154 I
1

E.D. Jay - 11/30/12

2

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.

10

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

16

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.

19

We told them to take as long as they would

20

like to look at or browse this page, and then

21

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 [phone]

190 I
E.D. Jay - 11/30/12

1
2

from a little while back, some respondents

3

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

9

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
17

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

23

a book?

24

A

25

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 [phone]

191 I
1

E.D. Jay - 11/30/12

2

them and they are listed as the author. So

3

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

8

named, sometimes in connection with

9

celebrities, sometimes for other reasons.

10

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

15

of Volume I of Exhibit 1, and specifically to

16

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"?

22

MS. CENDALI: Objection.

23

A

24

that. It's -- I don't know whether anybody

25

actually said that.

I would have to see if somebody even said

DAVID FELDMAN WORLDWIDE, INC.
450 Seventh Avenue - Ste 500, New York, NY 10123 [phone]

192

E.D. Jay - 11/30/12

1
2

Q

3

the computer tabs -- I think this is

4

Appendix U, if memory serves. And it is

5

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

18

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 [phone]

1

210 I
1

E.D. Jay - 11/30/12

2

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

17

those questions. Field has replicated

18

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 [phone]