CNG Financial Corporation v. Google Inc

Filing 74

RESPONSE in Opposition re 69 MOTION to Exclude Testimony of Plaintiff's Expert Michael Mazis filed by Plaintiff CNG Financial Corporation, Counter Defendant CNG Financial Corporation. (Attachments: # 1 Affidavit /Declaration of Hunter in support of CNG Opposition to Motion# 2 Exhibit Exhibit A to Attachment# 3 Exhibit Exhibit B to Attachment to Opposition# 4 Exhibit Exhibit C to Attachment to Opposition# 5 Exhibit Exhibit D to Attachment to Opposition# 6 Exhibit Exhibit D - Part B to Attachment to Opposition# 7 Exhibit Exhibit E to Attachment to Opposition to Motion to Exclude) (Hunter, Barry)

CNG Financial Corporation v. Google Inc

Doc. 74 Att. 2

CCase1:06-cv-00040-SSB-TSB ase 5:03-cv-05340-JF

Document 74-3

Filed 07/20/2007

Page 1 of 2

Document 265

Filed 01/26/2007

Page 2 of 21
Page 1

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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4 GOOGLE INC., a Delaware

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Plaintiff(a) ,

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7 AMERICAN BLIND & WALLPAPER
FACTORY, INC., a Delaware

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8 corporation d/b/a
9 DOES 1 through 100,
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decora tedtoday. com, Inc., and

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Defendant (s) .

12 AMERICA BLIND & WALLPAPER

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13 corporation d/b/a
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FACTORY, INC., a Delaware

14 DOES 1 through 100, inclusive

today . com, Inc., and

15 Counter- Plaintiff,
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17 corporation, 18 Counter-Defendant.
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GOLE INC., a Delaware

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DEPOSITION OF DR. ITAM SIMONSON
Held at Howrey 525 Market Street, Suite 3600 San Francisco, California Friday, December 15, 2006, 9:51 a.m.

22
23 24

25 REPORTED BY: James Beasley, CSR No. 12807

EXHIBIT
DR. rrAMAR SIMONSON

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Dockets.Justia.com

Case 5:03-cv-05340-JF Case 1:06-cv-00040-SSB-TSBumeDocument 74-3 Doc nt 265
1

Filed 01/26/2007

Filed 07/20/2007

Page 2 of 2
Page 128

Page 14 of 24

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If they Just put in bl/nds? 2
A. I don't know. I don't thInk that that 3
would be a concern. I'm not sure how many 4 consumers have some theories about the algorIthm 5 that generates organic results or In the context of 6
the survey that would be a sIgnifcant factor, that 7

search result that the consumer would expect to get 1

Pag 126

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Q. And that's why rIght now the sponsored lisIngs are either at the top of the organic
listings or directly to the right of the top of the
organIc listngs, correct?

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5 6 7

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A. Yes.

Q. And so If you assume -- If you just accept
my representation that the manner in whIch the
listIngs are presented in response to a search term

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9 10 11

American Blinds. 9
brand or thInk, Is there AmerIcan Blinds, which 11
sounds like a perfectly legitImate organic result. 12

somehow they would analyze and say, well, here Is 8

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Let's assume that they know to research a 10

In the trademark Is part of the problem, would It

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be an acceptable control to just move the sponsored
listings down to the bottom and put a disclaimer
up?
A. No.
Q. And why not?

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I mean, there are blinds that are made and sold in 13
America. So there Is nothIng unusual there. 14

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Q. Okay. So have you any other suggestIons 15

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18 19

for what a proper control would be? 16
so obvIous. I haven't thought about others. 18

A. No. I mean, I don't thInk that's the
quesion. The queston Is whether -- I forget how

20 21

22 23 24 25

~.~ n24 Q Uh-huh.
A. This was an espeCially easy survey for 2

A. I mean, you could have asked about a 20

Q. Okay. 19
P~e 127

A. You know, I haven't thought -- that seems 17

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Mr. Oslp defined his mandate, but I believe he said, whether consumers who enter the search term
amerIcan blinds in the Google search engine are

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different brand. That would be another control. 21

mIsled by their results by the sponsored links

LIke, would you find -- I don't know, name another 22

appearing on the web results.
That's the Question. So the Question is, in other words, you have to enter the terms
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2

Q. Okay. 1

A. That could be another control. 25

american blinds and then you are misled by the

links. It doesn't say are misled because the
links -- the sponsored links appear one inch from Pa¡¡ 129
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3 4 5 6
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which to find a control. 3
Q. Would changing the appearance of the way 4

the top as opposed to four and a half inches from
the top. I just dIdn't see that in his objective

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the listngs come back be a proper control, In 5
other words, movIng the sponsored listings down to 6
the bottom and putting a disclaimer saying that 7

for the survey. So therefore that would not be my
con trol.

Q. Okay. But if it was his control, why
wouldn't that have been acceptable, what would your

8
9 10
11 12

thes listngs aren't related to the search term? 8

A. I don't know. Now you -- that's an 9
open -- there are Infinite poSSibilties about 10
moving It two Inches down or an Inch and a half up. 1 1

criticism be?

A. Because It would have the same problems that we talked about.

13 14

Q. I don't understand. What would the same I don't see any need for that. 12 problems be? I mean, the key here is whether the 13 A. Well, because It stil would not show In consumers are misled after entering the term 14

15 16
17 18 19

american blinds by the sponsored links that appear. 15

any way that the beliefs or the answers had

the positionIng. 17
I undersand the complaint Is not saying, 18
how come the sponsored links appear two Inches to 19

So I think that's really the question, not exactly 16

anything to do wIth entering the key words,

american blinds.
Q. Well, but you undersand that the

infringement is not the fact that people type in
american blinds, or the alleged infringement is not
type in american blinds, it's what comes back In response to that?
A. Yeah, that's my undersanding.
Q. SO if you were to compare what's currently
the fact people

20
21 22
23

the rIght or whatever. My undersandIng, that's 20

not the basis for the allegations here, 21
Q. Well, I think you're mistaken on that. 22

You're aware that the ordering of listings can have 23

24

an Impact on the click-through rate, right? 24

25

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A. Yes. 25

coming back versus, you know, rearranging it in

some way and you didn't have -- and you didn't have
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33 (Pages 126 to 129)

DR. rrAMAR SIMONSON