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. 4

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2
3

**E-Filed 4/18/2007**

4
5

6
7

NOT FOR CITATION
8

IN THE UNITED STATES DISTRICT COURT
9

FOR THE NORTHERN DISTRICT OF CALIFORNIA
10

SAN JOSE DIVISION
11

12

GOOGLE INC., a Delaware corporation,
13

Case Number C 03-5340 JF (RS)
ORDER' GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY mDGMENT
(re: docket no. 230)

Plaintiff,
14

v.
15

AMERICAN BLIND & W ALLP APER 16 FACTORY, INC., a Delaware corporation d/b/a
decoratetoday.com, Inc., and DOES 1-100,

17 inclusive,
18 19

Defendants.
AMERICAN BLIND & W ALLP APER FACTORY, INC., a Delaware corporation d/b/a
decoratetoday.com, Inc.,

20
21

Counter Plaintiff,
v.

22
23

GOOGLE INC., AMERICA ONLINE, INC.,

24
25

NETSCAPE COMMUICATIONS CORPORATION, COMPUSERVE
INTERACTIVE SERVICES, INC., ASK JEEVES, INC. and EAR THLINK, INC.,
Counter Defendant/
Third Part Defendants.

EXHIBIT

26 27

l
D B

c

28 i This disposition is not designated for publication and may not be cited.

Case No. C 03-5340 IF (RS)

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT
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Plaintiff and Counter Defendant Google Inc. ("Google") moves for summary judgment.
2 Defendant American Blind & Wallpaper Factory, Inc. ("ABWF") opposes the motion. For the

4 I. BACKGROUND
5 1.
Procedural Background

3 reasons discussed below, the motion wil be granted in part and denied in part.

6 Google filed the instant action for declaratory relief on November 26,2003, seeking a

7 judicial determination that its "AdWords" advertising program does not infringe ABWF's
8 trademarks. On April

12, 2004, the Court denied ABWF's motion to dismiss the complaint or, in

9 the alternative, to stay proceedings in the case. On May 4,2004, ABWF answered Google's

10 complaint and asserted counterclaims against Google and third-party claims against Ask Jeeves,

11 Inc., Earthlink, Inc., America Online, Inc., Netscape Communications Corporation, and
12 Compuserve Interactive Services, Inc. (collectively "Third-Party Defendants") for: (i) trademark
13 infringement in violation of the Lanham Act; (ii) false representation in violation of

the Lanham

14 Act; (iii) trademark dilution under the Lanham Act; (iv) injury to business reputation and dilution
15 in violation ofCal. Bus. & Prof. Code § 14330; (v) unfair competition in violation ofCal. Bus. &

16 Prof. Code § 17200; (vi) common law trademark infringement; (vii) tortious interference with
17 prospective economic advantage; and, in the alternative, (viii) contributory trademark

18 infringement; and (ix) contributory trademark dilution. In an order filed March 30, 2005

19 ("March 30th Order"), the Court granted the motions of Google and the Third-Part Defendants
20 to dismiss ABWF's claim for tortious interference with prospective business advantage and
21 denied motions to dismiss ABWF's other claims. On December 26,2006, Google moved for

22 summary judgment.2 The Court heard oral argument on February 16, 2007.

23 2.

Factual Background

24 The factual background of

this action is discussed in detail in the March 30th Order. In

25 summary, the action pertains to the sale by Google and the Third-Part Defendants of

26
27

2 Google moved for termnating sanctions on the same date. On February 12, 2007, the

28 Court referred that motion to Magistrate Judge Seeborg.
2
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trademarked terms belonging to ABWF as keywords that trigger "Sponsored Links" on Google's
2 search results pages. ABWF alleges that Google sells these terms to ABWF's competitors.
3 Google acknowledges that it does this and has provided the Court with a copy of its stated
4 procedure for handling trademark complaints. That procedure states:

5 When we receive a complaint from a trademark owner, we will only investigate whether the advertisements at issue are using terms corresponding to the 6 trademarked item in the advertisement's content. If they are, we wil require the advertiser to remove the trademarked term from the content of the ad and prevent
7 the advertiser from using the trademarked term in ad content in the future. Please

note that we wil not disable keywords in response to a trademark complaint.
8

9 "AdWords Trademark Complaint Procedure," Hamm Decl. Ex. E (emphasis added). The crux of
10 this dispute is whether Google infringes ABWF's trademarks by refusing to disable trademarked
11 keywords. To the extent that pertinent factual disputes remain, they

are discussed below.

12 II. LEGAL STANDARD
13 A motion for summary judgment should be granted if there is no genuine issue of
14 material fact and the moving party is entitled to judgment as a matter oflaw. Fed. R. Civ. P.
15 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party

bears

16 the initial burden of informing the Court of the basis for the motion and identifying the portions

17 of the pleadings, depositions, answers to interrogatories, admissions, or affdavits that
18 demonstrate the absence ofa triable issue of

material fact. Celotex Corp. v. Catrett, 477 U.S.

19 317,323 (1986).
20 If

the moving part meets this initial burden, the burden shifts to the non-moving part to

21 present specific facts showing that there is a genuine issue for triaL. Fed. R. Civ. P. 56(e);
22 Celotex, 477 U.S. at 324. A genuine issue for trial exists if

the non-moving party presents

23 evidence from which a reasonable jur, viewing the evidence in the light most favorable to that
24 part, could resolve the material issue in his or her favor. Anderson, 477 U.S. 242,248-49;

25 Barlow v. Ground, 943 F. 2d 1132, 1134-36 (9th Cir. 1991).

26 III. DISCUSSION
27 1.
Trademark Use in AdWords Program

28 In its March 30th Order denying Google's motion to dismiss, the Cour indicated that it
3
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1 would consider at a later date, "both the relevant facts and the applicable law in the context of a
2 fuller record." March 30th Order 16. The Court concluded that "given the state of

the governing

3 law, American Blind has made suffcient allegations of direct infringement and dilution by
4 Defendants' advertisers and contributory liability on the part of

Defendants such that it does not
facts in support of (its) claim(s)

5 appear 'beyond doubt' that American Blind 'can prove no set of

6 that would entitle (it) to relief.'" Id. at 15. The Court observed that this approach was consistent
7 with that taken by the district court in Government Employees Insurance Co. v. Google, Inc., 300

8 F.Supp.2d 700 (E.D.Va. 2004) (hereinafter "GEICO"). March 30th Order 16.

9 In its motion for summary judgment, Google asks the Court to declare that, as a matter of
10 law, Google's sale of

trademarked keywords in its AdWords program does not constitute use in

11 commerce under the Lanham Act. 3 Google points to intervening decisions in other districts that

12 do not follow GEICo. The Court has reviewed the intervening cases cited by both parties and
13 has considered the conflict among them in light of the limited guidance offered by existing Ninth

14 Circuit precedent.
15
a.

Developments in the Law Since the March 30th Order

16 Two district courts in the Second Circuit have concluded that the sale of trademarks as
17 keywords for sponsored links does not constitute use for the purpose of the La~am Act. Merck

18 & Co., Inc. v. Mediplan Health Consultng, Inc., 425 F.Supp.2d 402,408 (S.D.N.Y. 2006),
19

20
21

3 15 U.S.c. § 1127 defines "use in commerce":
"The term 'use in commerce' means the bona fide use of a mark in the ordinary course of and not made merely to reserve a right in a mark. For purposes of

22
23

trade, this chapter, a mark shall be

24
25

26 27 28

deemed to be in use in commerce-(1) on goods when-(A) it is placed in any manner on the goods or their containers or the displays associated therewith or on the tags or labels affixed thereto, or if the natue of the goods makes such placement impracticable, then on documents associated with the goods or their sale, and (B) the goods are sold or transported in commerce, and (2) on services when it is used or displayed in the sale or advertising of services and the services are rendered in commerce, or the services are rendered in more than one State or in the United States and a foreign country and the person rendering the services is engaged in commerce in connection with the services." 4
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1 involved a number of manufacturers of a generic version of the drug Zocor that paid "Google4
2 and Yahoo to have links to their websites displayed, as sponsored links, among the first results

3 when a consumer searcher d) the keyword 'Zocor. ", The court based its analysis on 1-800
4 Contacts v. WhenU.com, Inc., 414 F.3d 400 (2d Cir. 2005),5 a case that dealt with the use of

5 trademark terms to trigger pop-ups. In that case, the Second Circuit concluded that a "company's

6 internal utilization of a trademark in a way that does not communicate it to the public is
7 analogous to a(n) individual's private thoughts about a trademark. Such conduct simply does not

8 violate the Lanham Act. . . ." Id. at 409. The Mediplan court relied on this logic to conclude
9 that the "internal use of the mark' Zocor' as a key word to trigger the display of sponsored links
10 is not use of

the mark in a trademark sense," Mediplan, 425 F.Supp.2d at 415, and granted that
the defendants' motion for judgment on the pleadings.6

11 aspect of

12 Rescuecom Corp. v. Google, Inc., 456 F.Supp.2d 393 (N.D.N.Y. 2006), decided shortly
13 after Mediplan, reached the same result, also on the basis of 1-800 Contacts. Plaintiff alleged

14 that Google sold "Rescuecom to plaintiffs competitors as a keyword7 that trigger(ed) the
15 competitors' sponsored links to appear on the search results page when an Internet user enter( ed)

16 Rescuecom as a search term." Id. at 400. The court reasoned that Google's "internal use of
17

18 4 The court does not identify the specific program run by Google, but it appears to be the
AdW ords program.
19
5 The 1-800 Contacts case was decided after the issuance of

20
21

the March 30th Order.

6 The court reaffirmed its decision on a subsequent motion for reconsideration. See
22
23

24
25

26

27
28

Merck & Co., Inc. v. Mediplan Health Consulting, 431 F.Supp.2d 425, 427 (S.D.N.Y. 2006) ("For the reasons stated in the Opinion, I conclude that defendants' purchase from Google and Yahoo of the right to have their websites displayed as 'sponsored links' when a computer user searches the keyword 'Zocor' does not constitute trademark use."). The cour also expanded on its opinion, explaining: "When a computer user tyed in the keyword Zocor, she would be offered, by virte of the internal search engine processes, sponsored links to defendants' websites, in addition to the actual websites generated by the search engine program using neutral and objective criteria. This internal use of the keyword 'Zocor' is not use of the ZOCOR mark to indicate source or sponsorship. It may be commercial use, in a general sense, but it is not trademark use. Indeed, if anything, keywording is less intrsive than pop-up ads as it involves no aggressive overlaying of an advertisement on top of a trademark owner's webpage." Id. at 428.
7 Rescuecom involved a challenge to the "AdW ords" program.
5
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1 plaintiff s trademark to trigger sponsored links is not a use of a trademark within the meaning of

2 the Lanham Act, (J because there is no allegation that defendant places plaintiff s trademark on
3 any goods, containers, displays, or advertisements, or that its internal use is visible to the public."
4 Id. at 403. Thus, the court concluded, such conduct does not violate the Lanham Act, "which is

5 concerned with the use of trademarks in connection with the sale of goods or services in a

6 manner likely to lead to consumer confusion as to the source of such goods." Id. The court
7 distinguished GEICO on the basis that GEICO involved allegations pertaining to "the inclusion
8 of

the marks in advertisements," id. at 402 (citing GEICO, 330 F.Supp.2d at 704), and granted
Go

9 that aspect of

ogle's motion to dismiss.

10 Two district courts in New Jersey reached a contrary decision. 800-JR Cigar, Inc. v.
11 GoTo.com, Inc., 437 F.Supp.2d 273 (D.N.J. 2006), involved a "pay-for-priority" search engine

12 that "solicit( ed) bids from advertisers for key words or phrases to be used as search terms, giving

13 priority results on searches for those terms to the highest-paying advertiser." Id. at 278. The
14 court concluded that this constituted "use" for the purposes of

the Lanham Act in three ways:

15 First, by accepting bids from those competitors of JR desiring to pay for prominence in search results, GoTo trades on the value of the marks. Second, by 16 ranking its paid advertisers before any 'natural' listings in a search results list, GoTo has injected itself into the marketplace, acting as a conduit to steer potential 17 customers away from JR to JR's competitors. Finally, through the Search Term Suggestion Tool, GoTo identifies those of JR's marks which are effective search 18 terms and markets them to JR's competitors.
19 Id. at 285. The court explained that there were "no disputed material issues of

fact which would

20 prevent (it) from concluding, as a matter oflaw, that GoTo (made) trademark use of JR Cigar's
21 trademarks," and proceeded to consider whether "summary judgment (was) appropriate on the
22 issue of

whether GoTo's use of JR's trademarks creates a likelihood of confusion." Id.

23 Similarly, in Buyingfor the Home, LLC v. Humble Abode, LLC, 459 F.Supp.2d 310 (D.N.J.
24 2006), the court ruled that allegations of the purchase of

keywords under Google and Yahoo's

25 respective sponsored links programs "clearly satisfy the Lanham Act's 'use' requirement." Id. at

26 323. See also International Profit Associates, Inc. v. Paisola, 461 F.Supp.2d 672,677 n.3

27 (N.D.Il. 2006) (citing Buyingfor the Home and stating that "(t)he law in the Seventh Circuit is
28 silent on whether the use of a trademark as a keyword in an online search program such as
6
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1 Google's Adwords is a use 'in commerce' under the Lanham Act as required to establish a claim,
2 but other courts have determined that purchasing a trademarked term as a 'keyword' for Google

3 Adwords program meets the Lanham Act's use requirement.").
4 Unreported decisions from district courts in Minnesota and Delaware reached the same

5 result as that reached by the New Jersey courts. Edina Realty, Inc. v. TheMLSOnline.Com, 2006

6 WL 737064 (D.Minn. 2006) (not published in F.Supp.2d) involved a real estate broker that had
7 purchased the trademarked name of a competitor as a keyword search term from Google and

8 Yahoo. Citing Brookfeld Communs., Inc. v. W Coast Entm 't Corp., 174 F.3d 1036, 1064 (9th
9 Cir. 1999) (hereinafter, Broo~lield), the court concluded that "( w )hile not a conventional 'use in

10 commerce,' defendant nevertheless uses the Edina Realty mark commercially. . .. Based on the

11 plain meaning of the Lanham Act, the purchase of search terms is a use in commerce." Id. J G.
12 Wentworth, S.S.C v. Settlement Funding LLC, 2007 WL 30115 (E.D.Pa. 2007) (slip copy)
13 considered the sale of

trademarks in Google's AdWord's program. The court concluded that

14 such use "is not analogous to 'an individual's private thoughts' as defendant suggests. By
15 establishing an opportnity to reach consumers via alleged purchase and/or use of a protected

16 trademark, defendant has crossed the line from internal use to use in commerce under the

17 Lanham Act." Id. at *6.
18

b.

Existing Ninth Circuit Precedent
these conflicting authorities, this Court necessarily the leading Ninth Circuit case in this area, Playboy Enterprises,

19 In considering the persuasive value of

20 must be guided by the holding of

21 Inc. v. Netscape Communications Corp., 354 F.3d 1020 (9th Cir. 2004) (hereinafter, Playboy).
22 That case involved a challenge to the practice of

"keying" sponsored banner ads to Playboy's

23 trademarks "playboy" and "playmate." In discussing the affrmative defenses raised by Netscape,

24 the court emphasized the facts that were not at hand:
25 (W)e are not addressing a situation in which a banner advertisement clearly identifies its source with its sponsor's name, or in which a search engine clearly
in which advertisers or defendants overtly compare PEI's8 products to a
27

26 identifies a banner advertisement's source. We are also not addressing a situation

28

8 Playboy Enterprises Inc.
7
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1 competitor's - saying, for example "if

you are interested in Playboy, you may also be interested in the following message from (a different, named company)."

2 Rather, we are evaluating a situation in which defendants display competitors'

unlabeled banner advertisements, with no label or overt comparison to PEl, after
3 Internet users type in PEl's trademarks.
4 Id. at 1030.9 The Court rejected the affrmative defenses raised by Netscape, including the

5 nominative use defense upon which the district court had granted summary judgment, and

6 concluded that Playboy survived summary judgment on the likelihood of confusion under the
7 eight-factor test articulated in AMF Inc. v. Sleekcraft Boats, 599 F.2d 431, 438-49 (9th Cir.

8 1979).

9 The facts of the instant case differ from those of Playboy in that Google identifies
10 sponsored links as such, while Playboy involved banner ads that were "confusingly labeled or not

11 labeled at alL." Playboy, 354 F.3d at 1023. ABWF implies in its opposition that Google does not

12 identify sponsored links: "although Google claims publicly that its ads are conspicuous and

13 differentiated from its genuine search results, this is not necessarily true." Opposition 11.
14 ABWF contends that Google has developed a system that could apply a clear disclaimer stating
15 that the sponsored links are not necessarily sponsored by the trademark owner. Id. However,
16 ABWF provides no evidence that contradicts Google's description of

the placement and

17 identification of sponsored links. The parties dispute whether the term "Sponsored Links" is
18 confusing, but there is no evidence that Goog1e has failed to identify sponsored links in keeping

19 with its stated policy of doing SOlO and the description of the practice it has provided to this

20 Court. Nor is there any evidence in the record that Google permits purchasers of sponsored links
21 to use trademarked terms in their text or title when the sponsor does not own the trademark.

22 Nonetheless, the Cour concludes that it should follow GEICO and other cases finding use in

23 commerce on similar facts.

24 As this Court observed in the March 30th Order,
25

26
27 28

9 In a footnote, the Cour observed that clearly identifyng a banner ad's source "might
eliminate the likelihood of confusion that exists in this case." Id. at n.43.
10 The parties dispute whether Google defines "Sponsored Links" anywhere on its

website. The Cour need not resolve that issue for the purposes of the present discussion.
8
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the defendants' alleged "use" of

it is not at all clear that (the Ninth Circuit's) ultimate conclusion (in Playboy) that the plaintiffs trademarks was "actionable' was

2 not based on an implicit, preliminary determination of actionable trademark "use"

in the sense (at issue here). If the use were not actionable in (that) sense, it is
3 unclear why the court would have undertaken a lengthy and, by (Google and Third
Party Defendants') apparent reading of

the case, wholly unnecessary likelihood-

4 of-confusion analysis. Moreover, the possibility of such an implicit determination

does not appear to have been precluded by the (Ninth Circuit's) observation that
5 there was "(n)o dispute" as to whether (Google and Third Party Defendants) had

"used the marks in commerce," as the accompanying footnote suggests that the
6 observation concerned only the jurisdictional requirement of use "in commerce"
and not the separate requirement of

trademark "use."

7

8 March 30th Order 14. The Court concluded that it need not address this argument or Google's
9 effort to distinguish Playboy on the basis that Playboy involved unidentified advertisements

10 because there were relevant facts not before the Court at the motion to dismiss stage. Id. at 15.
11 In light ofthe undisputed facts now in the record, the Court must determine whether Playboy

12 makes an implicit finding of trademark use in commerce in the manner at issue here. The Court

13 concludes that it does.
14 Both the majority and concurring opinions in Playboy focus on the likelihood-of15 confusion analysis, indicating the Ninth Circuit's sense of ii where the legal issue in that case lay.

16 Nothing in the majority's discussion of

the relevant facts suggests that it questioned whether the

17 plaintiff

had shown that there was a use of

its trademark in commerce. See Playboy, 354 F.3d at

18 1030.12 The concuring opinion, which appears to have anticipated a case similar to the instant
19 action, also appears to have assumed trademark use and also focused directly on likelihood-of20 confusion analysis: "I do not think it is reasonable to find initial interest confusion when a
21 consumer is never confused as to source or affiliation, but instead knows, or should know, from
22 the outset that a product or web link is not related to that of

the trademark holder because the list

23 produced by the search engine so informs him." Id. at 1034-35 (Berzon, J., concuring). Judge

24
25

i i The Cour does not suggest that "use in commerce" does not remain an independent
and necessary requirement of trademark infringement. See Motion 9 (citing Karl Storz Endoscopy-America, Inc. v. Surgical Techs., Inc., 285 F.3d 848, 855-56 (9th Cir. 2002)).
12 Instead, the majority stated that where "(t)he Internet user (reaches) the (competitor's)
site because of (the competitor's) use of

26

27
28

(a) mark (to keyunlabelled banner ads, s)uch use is
9

actionable." Id. at 1026.

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Berzon does not identify "use in commerce" as an open front in this area of law or suggest that

2 remains a question for a later date. Instead, she suggests that future Ninth Circuit decisions
3 should address the viability of existing Ninth Circuit precedent on the scope of

the initial interest

4 confusion doctrine "should the labeled advertisement issue arise later." Id. at 1036
5 Brookfeld, the principal case relied upon by the Playboy majority, involved "metatags,"

6 terms on a webpage that are invisible to a consumer, but seen by a search engine. The plaintiffs
7 alleged that Defendants used trademarks as metatags in an effort to draw traffic to their site and
8 away from that of the holder of

the trademarks. The Ninth Circuit concluded that "using a

9 competitor's trademark in the metatags of (a) website is likely to cause what we have described

10 as initial interest confusion. These forms of confusion are exactly what the trademark laws are
11 designed to prevent." Id. at 1066. As it did later in Playboy, the Ninth Circuit focused its

12 analysis on initial interest confusion and did not question whether the metatags were used in
13 commerce in the sense at issue here. Brookfield, like Playboy, suggests that the Ninth Circuit
14 would assume use in commerce here.

15 This Court thus concludes, as did the courts in GEICO, 800-JR Cigar, Humble Abode,
16 Edina Realty, and Wentworth, that the sale of

trademarked terms in the AdWords program is a

17 use in commerce for the purposes of

the Lanham Act. While the Second Circuit's decision in 1-

18 800 Contacts and the subsequent district court decisions may cause the Ninth Circuit to consider

19 this issue explicitly, the lengthy discussions of likelihood of confusion in Brookfeld and Playboy

20 would have been unnecessary in the absence of actionable trademark use. Accordingly, while
21 Google's analogies to trademark infringements outside the digital realm are attractive, the Court

22 wil deny Google's motion for summary judgment to the extent that it is brought on the basis of

23 an asserted absence of trademark use.

24 2.

Enforceability of

"American Blinds" Trademark

25 Google next contends that ABWF's claims pertaining to the "American Blinds" mark are
26 not viable because that mark is not enforceable. Google asserts that "American Blinds" was not
27 registered at the time the present action was commenced, that ABWF is not entitled to the
28 statutory presumption of

validity and exclusive rights granted by 15 U.S.C. § 1115, that it cannot
10

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1 prove secondary meaning of

"American Blinds," and that ABWF's recent use of

"American

2 Blinds" is only a litigation ploy. 13
3 The "American Blinds"

14 mark was registered in the United States Patent and Trademark

4 Offce on September 26,2006. 15 U.S.C. § 1115(a) provides that registration ofa mark is

5 "prima facie evidence of the validity of the registered mark and of the registration of the mark, of
6 the registrant's ownership of the mark, and of

the registrant's exclusive right to use the registered

7 mark in commerce.,,15 The presumption of ownership under 15 U.S.c. § 11l5(a) attaches at the
8 date of the filing of the application for federal registration. Sengoku Works Ltd. v. RMC
9 International, LTD., 96 F.3d 1217, 1219-20 (9th Cir. 1996). ABWF applied for the "American
10 Blinds" mark on April

9, 2004. Hamm Decl. Ex. 1. Google cites case law from the Third Circuit

11 indicating that if registration occurs after the first allegedly infringing use commences, the
12 presumption does not apply and the plaintiff

must establish that it holds an enforceable common-

13 law trademark. Motion 15 (citing Commerce Natl Ins. Servs., Inc. v. Commerce Ins. Agency,
14 Inc., 214 F.3d 432 (3d Cir. 2000)). ABWF has identified no contrary

Ninth Circuit authority.

15 ABWF's counterclaim alleging infringement was filed one month after the registration date, and
16

17
18

13 Elsewhere, Google asserts that "ABWF's claims that Google infringes its two

purported common law marks - 'American Blind' and 'American Blinds' - must fail because ABWF cannot prove that it has any rights in those marks." Motion 2. 14 The Court also has considered Google's limited references to the asserted

19

20
21

22
23

24
25

unenforceability of the "American Blind" mark, and concludes that these references were suffcient to inform the Court of the basis of the motion and to give notice thereof to ABWF. ABWF also treats the single and plural versions of this mark as interchangeable for the purposes of this action. See Answer and Counterclaim il17 ("Since at least as early as 1986, and long prior to the acts of the Defendants complained of herein, American Blind adopted and used, and has continued to use, the names and marks AMERICAN BLIND and AMERICAN BLINDS (hereinafter collectively identified as "AMERICAN BLIND") in connection with home decorating products and related services which have been offered for sale and sold in interstate commerce in the United States, including the State of California.").
15 A mark becomes incontestable under 15 U.S.c. § 1065 after five years of continuous

26
27 28

use since registration and after conformance with the procedures identified in that section. Such an incontestable mark becomes conclusive evidence of the registrant's ownership of and exclusive right to use the mark. 15 U.S.C. § 1125(b). ABWF does not assert that it registered the mark more than five years ago.
11
Case No. C 03-5340 IF (RS)

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT

(JFLCl)

Case 1:06-cv-00040-SSB-TSB

Case 5:03-cv-05340-JF Document 308 Filed 04/18/2007 Page 12 of 21

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Page 12 of 21

1 the first alleged infringement occurred prior to registration. Accordingly, the Court considers

2 whether ABWF has provided evidence of a enforceable common-law interest in the mark
3 "American Blind."
4 The parties dispute the nature of

the term "American Blind." "Trademark law groups

5 terms into four categories: (1) generic, (2) descriptive, (3) suggestive, and (4) arbitrary or
6 fancifuL." Japan Telecom, Inc. v. Japan Telecom America Inc., 287 F.3d 866, 872 (9th Cir.

7 2002) (internal quotation marks omitted). Google asserts that "American Blind" is descriptive.

8 ABWF claims that "American Blind" is "inherently distinctive," or, in other words, suggestive,
9 or arbitrary or fancifuL. See Yellow Cab Co. Of Sacramento v. Yellow Cab Co. Of Elk Grove,

10 Inc., 419 F.3d 925, 926 (9th Cir. 2005). "Descriptive terms. . . describe a person, a place or an
11 attribute of a product." Id. (internal quotation marks and ellipses omitted). However, ABWF
12 does not point to evidence sufficient to create a triable issue of fact as to whether the mark

13 "American Blind" is inherently distinctive. Rather, like the mark "Japan Telecom" in the case of
14 that name, "American Blind" is descriptive.
15 A descriptive common-law mark must acquire secondary meaning to become

16 enforceable. See e.g. Norm Thompson Outftters, Inc. v. General Motors Corp., 448 F.2d 1293,

17 1299 (9th Cir. 1971); Japan Telecom, 287 F.3d at 873. "In evaluating the suffciency of evidence

18 of secondary meaning, (the Ninth Circuit looks) to a number of factors, including (1) whether
19 actual purchasers of the product bearing the claimed trademark associate the trademark with the
20 producer, (2) the degree and manner of advertising under the claimed trademark, (3) the length
21 and manner of use of

the claimed trademark, and (4) whether use ofthe claimed trademark has

22 been exclusive." Id. (internal quotation marks omitted). The Court concludes that ABWF has
23 not produced suffcient evidence to allow a reasonable trier of fact to conclude that "American

24 Blinds" has acquired secondary meaning. The evidence provided by ABWF either is dated after 25 the first alleged infringement or is undated. ABWF offers general declarations regarding the
26 strength of its combined marks, but it fails to provide any detailed information regarding the use
27 of

the "American Blinds" mark. Accordingly, the Court will grant summary judgment to the

28 extent that ABWF's claims are based on the alleged "American Blinds" mark. Because ABWF
12
Case No. C 03-5340 IF (RS)

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT
(JFLC 1 )

Case 1:06-cv-00040-SSB-TSB

Case 5:03-cv-05340-JF Document 308 Filed 04/18/2007 Page 13 of 21

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Page 13 of 21

1 treats the alleged "American Blind" mark as equivalent to the alleged "American Blinds" mark

2 and because the record reflects a similar absence of evidence of its inherent distinctiveness or
3 secondary meaning, the Court also wil grant summary judgment in favor of Google to the extent
4 that the claims are based on the alleged "American Blind" mark.

5 3.

Trademark Infringement and Confusion

6 Google moves for summary judgment on the ground that ABWF cannot prove a
7 likelihood of confusion with respect to any of the asserted marks.

16 ABWF argues that it can

8 prove a likelihood of confusion and appears to base its arguments on the initial interest confusion
9 doctrine.

10 "The core element of trademark infringement is whether the similarity of the marks is
11 likely to confuse customers about the source of

the products. . . . Initial interest confusion occurs

12 when the defendant uses the plaintiffs trademark in a manner calculated to capture initial
13 consumer attention, even though no actual sale is finally completed as a result of

the confusion."

14 Interstellar Starship Services, Ltd. v. Epix, Inc., 304 F.3d 936,941 (9th Cir. 2002) (internal

15 citations and quotation marks omitted). Likelihood of confusion is a mixed question of law and
16 fact. Levi Strauss & Co. v. Blue Bell, Inc., 778 F.2d 1352, 1355-56 (9th Cir. 1985). "To evaluate

17 the likelihood of confusion, including initial interest confusion, the so-called Sleekcraft factors
18 provide non-exhaustive guidance." Id. Those factors are:

19 1. strength of the mark;
20 3. similarity of

2. proximity of the goods; the marks;
4. evidence of actual confusion;

21 5. marketing channels used;
8. likelihood of expansion of

22 7. defendant's intent in selecting the mark; and
23

6. tye of goods and the degree of care likely to be exercised by the purchaser;
the product lines.

24
25

16 As discussed above, the Court will grant summary judgment in favor of Google to the

26 27 28

extent that ABWF bases its counter-complaint on the "American Blind" or "American Blinds"
marks. Three other marks are listed in ABWF's answer and counter-complaint: "American Blind

Factory," "Decoratetoday," and "American Blind & Wallpaper Factory." ABWF also refers to the mark "American Blind & Wallpaper" in opposition to Google's motion, Opposition 5-6, but that mark does not appear in the answer and counter-complaint.
13
Case No. C 03-5340 IF (RS)

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT

(JFLCl)

Case 1:06-cv-00040-SSB-TSB

Case 5:03-cv-05340-JF Document 308 Filed 04/18/2007 Page 14 of 21

Document 74-5

Filed 07/20/2007

Page 14 of 21

1 AMF Inc. v. Sleekcraft Boats, 599 F.2d 341,348-49 (9th Cir. 1979). The Ninth Circuit has
2 "cautioned that district courts should grant summary judgment motions regarding the likelihood

3 of confusion sparingly, as careful assessment of the pertinent factors that go into determining
4 likelihood of confusion usually requires a full record." Thane Intern., Inc. v. Trek Bicycle Corp.,

5 305 F.3d 894, 901-02 (9th Cir. 2002).
6 Google argues that actions of

participants in AdWords should not be treated as actions of

7 Google: "As for Google, none of

the Sleekcraft factors apply." Reply 15. However, the Ninth

8 Circuit applied the Sleekcraft factors to Netscape in Playboy. The court concluded that Playboy

9 could proceed past the summary judgment stage on either a direct or a contributory infringement 10 theory, Playboy, 354 F.3d at 1024, and it weighed the Sleekcraft factors as ifNetscape were

11 responsible for the competitors' advertisements. Playboy, 354 F.3d at 1026-29. The existence of
12 labels on Google's "Sponsored Links" may be relevant to the question of

whether a consumer is

13 confused for the purposes of trademark law, but the Court sees no reason why that difference

14 between this case and Playboy should cause it to apply the Sleekcraf factors differently in the

15 instant case.
16 As in Playboy, evidence of confusion is the most significant issue in applying the
17 Sleekcraft factors in the instant case. See Playboy, 354 F.3d at 1026 ("The expert study PEI

18 introduced establishes a strong likelihood of initial interest confusion among consumers. Thus,

19 factor four alone probably suffices to reverse the grant of summary judgment."). ABWF offers
20 the report of its expert, Alvin Ossip, as evidence of actual confusion. The report finds that

21 twenty-nine percent of respondents falsely believed, after being shown a Google search results
22 page for the entry "American Blinds," that "Sponsored Links" appearing on that page were

23 affiiated with ABWF. Opposition 28, Ossip Study 7.17 Google attacks the methodology and

24 execution of the surey on multiple bases, arguing that the surey has no probative value.
25 The Ninth Circuit has explained that a survey may be admitted as long as it is conducted
26 according to accepted principles and is relevant. Wendt v. Host International, Inc., 125 F.3d 806,

27

28 17 The Ossip study is Exhibit 0 to the Hamm Declaration in support of summary judgment.
14
Case No. C 03-5340 IF (RS)

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT

(JFLCl)

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1 814 (9th Cir. 1997). "Technical unreliability goes to the weight accorded to a survey, not its
2 admissibility," and that the better course for a district court in such a situation is to "admit the
3 survey and discount its probative value." Prudential Insurance Co., v. Gibraltar Financial
4 Corp., 694 F.2d 1150, 1156 (9th Cir. 1982). Admissibility of a survey is a question oflaw:
5 Treatment of surveys is a two-step process. First, is the survey admissible? That

is, is there a proper foundation for admissibility, and is it relevant and conducted
6 according to accepted principles? This threshold question may be determined by

the judge. Once the survey is admitted, however, follow-on issues of
7 methodology, survey design, reliability, the experience and reputation of the

expert, critique of conclusions, and the like go to the weight of the survey rather 8 than its admissibility. These are issues for a jury or, in a bench trial, the judge.
9 Clicks Biliards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1263 (9th Cir. 2001).

10 Google offers two principal critiques of the Ossip study: that it lacks a control group and

11 that it studied confusion only as to the "American Blinds" mark, which does not appear on any 12 actual products, and, as discussed above, is not enforceable.18 The lack ofa control in the study
13 clearly reduces its probative value, but Google cites no authority holding that such a deficiency is

14 sufficient to render the survey inadmissible as a matter oflaw. Nor does Google point to any
15 authority holding that a study must include all of a party's contested marks in order for it to be
16 relevant evidence of confusion as to each mark. Two of the registered marks that remain at issue

17 in the litigation, "American Blind Factory and "American Blind & Wallpaper Factory," are
18 similar to "American Blinds." Evidence of confusion stemmng from Google's use of

19 "American Blinds" thus has at least some relevance to the question of whether there is confusion
20 stemming from Google's use of

these two marks. The remaining mark at issue in the litigation,

21 "Decoratetoday," does not bear any similarity to "American Blinds." Accordingly, the Court
22 concludes that the Ossip study is relevant and admissible only to the extent that ABWF's claims
23 are based upon the marks "American Blind Factory and "American Blind & Wallpaper

24 Factory," and not to the extent that the claims are based upon the mark "Decoratetoday."
25

26
27
28

18 Google also criticizes the study for affirmatively choosing as respondents people who

had claimed to have heard of "American Blinds" products; over-counting confusion among study participants; failing to replicate real-life conditions as closely as possible; and failing to use a blind-panel to categorize responses. The Court concludes that each of these challenges goes to
weight rather than the admissibility of the surey.
15
Case No. C 03-5340 IF (RS)

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT

(JFLCl)

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1 Four of

the remaining Sleekcraft factors support a finding that there is suffcient evidence

2 to create a triable issue of fact regarding the likelihood of confusion. First, the goods offered by
3 competitors linked to by "Sponsored Links" as a result of the purchase of

trademarks as

4 keywords are in close proximity with those offered by ABWF. Second, the terms sold by Google

5 in the AdW ords program are the trademarked terms, so they are exactly similar to the marks at

6 issue.19 Third, ABWF has introduced evidence that a low degree of consumer care should be
7 expected of internet consumers and that many cannot identify which results are sponsored. See
8 Garrity Decl. Ex. L.20 Fourth, the evidence suggests that Google used the mark with the intent to

9 maximize its own profit, so the intent factor favors ABWF. With respect to the final relevant

10 Sleekcraft factor, the evidence before the Court suggests that the strength of the marks is
1 1 ambiguous.
12 Having considered the Sleekcraf factors, the Court concludes that ABWF has produced

13 sufficient evidence oflikelihood of confusion to withstand Google's motion for summary
14 judgment as to the "American Blind Factory" and "American Blind & Wallpaper Factory"
15 marks.21 While the Ossip study does not provide evidence relevant to the "Decoratetoday" mark,
16 17
18

19 The Ninth Circuit explained in GoTo.com, Inc. v. Walt Disney Co., 202 F.3d 1199 (9th

19

20
21

the Web (J the three most important Sleekcraft factors are (1) the similarity of the marks, (2) the relatedness of the goods or services, and (3) the simultaneous use of the Web as a marketing channeL." Id. at 1205 (quotation marks omitted). The first two elements of this "internet trinity," see Interstellar Starship Services, 304 F.3d at 942, are present in the instant case and the third, the marketing channels factor has little weight in this particular inquiry. See Playboy, 354 F.3d at 1028 ("PEI and the advertisers use identical marketing channels. . .. Given the broad use of the Internet today, the same could be said of countless
Cir. 2000) that, "in the context of

22
23

companies. Thus, this factor merits little weight.").

24
25

The Ninth Circuit also explained in Playboy that where, as here, "the advertisers' goods the company alleging infringement) are already related," the likelihood of expansion of product lines factor is "irrelevant." Id. at 1029.
and (the goods of

20 The cited study is not specific as to the search engine used, but this does not deprive it
of

26 27 28

probative value with respect to this Sleekcraft factor.
21 Google argues that ABWF cannot succeed on its trademark infringement action

because it has not produced any evidence showing that a user landing on the page linked to by the "Sponsored Link" cannot "readily see that it not what she sought" and contends that such "momentary confusion before she clicks the back button cannot suffice to support a claim for
16
Case No. C 03-5340 IF (RS)

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT

(JFLCl)

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Case 5:03-cv-05340-JF Document 308 Filed 04/18/2007 Page 17 of 21

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the Court concludes that the evidence pertaining to the remaining Sleekcrcit factors provides a

2 sufficient basis for denying summary judgment as to this mark as welL. 22 The lack of relevant
3 survey evidence pertaining to the "Decoratetoday" mark may make it harder for ABWF to

4 convince a jury of the likelihood of confusion surrounding Google' s use of that mark, but the
5 Court may not grant summary judgment on that basis alone.

6 As discussed above in the context of trademark use, the future application of the initial
7 interest confusion doctrine to identified, sponsored links is an unsettled question in the Ninth

8 Circuit. Judge Berzon's concurrence in Playboy suggests that the doctrine would reach such

9 situations and criticizes such a result:

10 As applied to this case, Brookfield might suggest that there could be a Lanham Act violation even if the banner advertisements were clearly labeled, either by the
1 1 advertiser or by the search engine. I do not believe that to be so. So read, the

metatag holding in Brookfield would expand the reach of initial interest confusion 12 from situations in which a party is initially confused to situations in which a part is never confused. I do not think it is reasonable to find initial interest confusion 13 when a consumer is never confused as to source or affiiation, but instead knows, or should know, from the outset that a product or web link is not related to that of
14
15

16
17 18

19

the Ninth Circuit. Google suggests that Playboy involved users who "having typed 'Playboy' into their search engine, were presented with an un labelled banner ad on the search-results page that led them to believe that they had in fact arrved at Playboy's website." Motion 24 (emphasis in original). However, the opinion in Playboy does not state that the users thought they had landed on Playboy's site or that it is a requirement of the initial interest confusion doctrine that they have had such a thought. Instead, the court said: "(M)any of the advertisements instruct users to 'click here.' Because of their confusion, users may follow the instrction, believing they wil be
damages." Motion 25. That is not the law of connected to a PEl (Playboy) site. Even if

20
21

they realize 'immediately upon accessing' the

22
23

competitor's site that they have reached a site 'wholly unrelated to' PEl's, the damage has been done: Through initial consumer confusion, the competitor 'wil stil have gained a customer by appropriating the goodwil that (PEI) has developed in its (J mark." Id. at 1025 (emphasis added). Accordingly, the Court wil not grant summary judgment to Google on the basis of ABWF's asserted failure to examine the website to which the "Sponsored Links" connect.
22 Likelihood of confusion tests articulated by the Ninth Circuit are intended to serve as a

24
25

26 27
28

"non-exclusive series of factors that are helpful in making the ultimate factual determination." Eclipse Associates Ltd. v. Data General Corp., 894 F.2d 1114, 1118 (9th Cir. 1990). The eightfactor Brookfeld test is "pliant, and the relative import of each factor is case specific." Interstellar Starship Services, 304 F.3d at 942. The Court concludes that in the instant case, the absence of evidence of actual confusion regarding the "Decoratetoday" mark is insuffcient alone to support a grant of summary judgment when other factors weigh against a grant of summary judgment.
17
Case No. C 03-5340 IF (RS)

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT
(JFLC 1)

Case 1:06-cv-00040-SSB-TSB

Case 5:03-cv-05340-JF Document 308 Filed 04/18/2007 Page 18 of 21

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Page 18 of 21

the trademark holder because the list produced by the search engine so informs
him.
2
3 Playboy, 354 F.3d at 1034-35 (Berzon, 1. concurring). However, even if

this Court were to treat

4 Judge Berzon's concurrence as controlling law, which it cannot, it would stil have to determine
5 whether a consumer "knows or should know, from the outset" that the sponsored link is not

6 related to ABWF, the trademark holder. It is undisputed that Google identifies "Sponsored

7 Links," but the reasonable response of a consumer to these links remains a disputed issue of fact.

8 4.

Trademark Dilution
the Lanham Act,

9 ABWF also brings claims for trademark dilution under Section 43(c) of

10 15 U.S.C. § 1125(c),23 and Cal. Bus. & Prof. Code § 14330. Google argues that ABWF's

11 dilution claims fail because ABWF has not presented evidence that its marks are famous.
12 The Lanham Act creates a right of action for dilution of a famous mark,24 as does the

13 California dilution statute.25 Under the Lanham Act,
14 a mark is famous if it is widely recognized by the general consuming public of the
United States as a designation of source of the goods or services of

15 owner. In determining whether a mark possesses the requisite degree of
16

the mark's

recognition, the court may consider all relevant factors, including the following:
17
18

23 Also known as the Federal Trademark Dilution Act ("FTDA").

24 "Subject to the principles of equity, the owner of a famous mark that is distinctive,

19

20
21

22
23

24
25

inherently or through acquired distinctiveness, shall be entitled to an injunction against another person who, at any time after the owner's mark has become famous, commences use of a mark or trade name in commerce that is likely to cause dilution by bluring or dilution by tarnishment of the famous mark, regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injur." 15 U.S.c. § 1125(c)(1). Google notes that 15 U.S.c. § 1125 was amended in October 2006. See Pub.L. 109-312, § 2, 120 Stat. 1730 (Oct. 6, 2006). The earlier version of the act did not include a reference to "the general consuming public" and enumerated eight non-comprehensive factors that a court could consider in determining fame. Google contends that prospective, injunctive relief must be governed by the updated act, and that any damages must be sought under the previous version of the act.

26
27 28

25 "Likelihood of injur to business reputation or of dilution of the distinctive quality of a
mark registered under this chapter, or a mark valid at common law, or a trade name valid at common law, shall be a ground for injunctive relief notwithstanding the absence of competition between the parties or the absence of confusion as to the source of goods or services." Cal. Bus. & Prof. Code § 14330.
18 Case No. C 03-5340 IF (RS) ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT

(IFLCl)

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1 (i) The duration, extent, and geographic reach of advertising and publicity
of

the mark, whether advertised or publicized by the owner or third parties.

2 (ii) The amount, volume, and geographic extent of sales of goods or

3 (iii) The extent of actual recognition of the mark.
(iv) Whether the mark was registered under the Act of 4 the Act of

services offered under the mark.

March 3,1881, or

February 20, 1905, or on the principal register.

5 15 U.S.C. § 1125(c)(2)(A). "The Ninth Circuit has made it clear that the protection afforded by
6 California's anti-dilution statute extends only to highly distinctive, well-known marks." Metro
7 Pub., Ltd. v. San Jose Mercury News, Inc, 861 F.Supp. 870, 881 (N.D.Cal. 1994).

8 ABWF has not conducted a fame survey, but its failure to perform such a survey is not
9 dispositive of the question before the Court. ABWF presents evidence of fame in the form of

10 declarations that the marks (1) have been used in advertising and publicity for an extended period
11 of

time in a broad geographic area; (2) have been on a large amount of goods sold under the

12 mark; and (3) have been registered. The evidence is contained in the declaration of Jeffrey
13 Alderman, Director of

Business Development and E-Commerce for ABWF. Google objects to

14 that declaration on multiple grounds.26 Assuming without deciding that the declaration is
15 admissible, the Court concludes that that ABWF has not produced sufficient evidence to allow a
16 reasonable trier of

fact to conclude that ABWF's marks are famous or distinctive as required

17 under either the federal or the state dilution statute.27 Accordingly the Court will grant summary

18 judgment on ABWF's third and fourth claims.

19 5.

Unclean Hands

20 Google contends that all of ABWF's claims are barred by the unclean hands doctrine

21 because ABWF engages in the same conduct that it alleges, namely purchasing the trademarks of
22 its competitors as keywords under the AdW ords program. The Ninth Circuit has explained that:
23

24
25

26 ABWF filed further exhibits in support of its opposition on the eve of oral argument

26 27 28

and shortly thereafter. ABWF describes these exhibits as supplying the evidence that Alderman summarizes in his declaration. See Response to Objections to Alderman Declaration 2. However, the exhibits do not provide support for ABWF's arguments beyond that provided by the Alderman declaration.
27 The Cour need not determine which version of the Lanham Act governs the various
aspects of ABWF's dilution claim.
19
Case No. C 03-5340 IF (RS)

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT
(JFLC 1 )

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Case 5:03-cv-05340-JF Document 308 Filed 04/18/2007 Page 20 of 21

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1 Unclean hands. . . does not stand as a defense that may be properly considered

independent of the merits of the plaintiffs claim-such as the defenses of the 2 statute of limitations or the statute of frauds. . . . In the interests of right and justice the court should not automatically condone the defendant's infractions
3 because the plaintiff is also blameworthy, thereby leaving two wrongs unremedied

and increasing the injury to the public. Rather the court must weigh the substance
4 of the right asserted by plaintiff against the transgression which, it is contended,

serves to foreclose that right. The relative extent of each party's wrong upon the
5 other and upon the public should be taken into account, and an equitable balance
6 'as compared with the trading methods of

struck. The ultimate decision is whether the deception actually caused by plaintiff the defendant warrant punishment of the plaintiff rather than of the defendant.'

7

8 Republic Molding Corp. v. B. W Photo Utilites, 319 F.2d 347,350 (9th Cir. 1963). The Court
9 has considered the equities involved in this case and concludes that the doctrine of

unclean hands

10 does not bar ABWF's claims. ABWF has submitted evidence of

its wilingness to enter into

11 agreements with competing companies to refrain from buying each other's trademarks as
12 keywords under the AdWords program. In addition, the large number of

businesses and users

13 affected by Google's AdWords program indicates that a significant public interest exists in
14 determining whether the AdW ords program violates trademark law.

15 iv. ORDER
19 DENIED as to the remaining claims.
20
21

16 Good cause therefor appearing, IT is HEREBY ORDERED that Google's motion for

17 summary judgment is GRANTED as to ABWF's third and fourh claims, and to the extent that
18 other claims are based upon the "American Blind" and "American Blinds" marks. The motion is

DATED: April 18,2007.

22
23

24
25

L trict Judge

t.~

26
27

28

20
Case No. C 03-5340 IF (RS) ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT

(IFLCl)

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1 This Order has been served upon the following persons:

2
3

Ethan B. Andelman Dawn Beery

andelmane(£howrey. com, gagnons(£howrey. com

dbeery(£kelleydrye.com
sgreenspon(£kelleydrye. com, cplater(£kelleydrye.com; vallen(£kelleydrye. com; sdunlap(£kelleydrye. com

4
5

Susan Jean Greenspon Ravind Singh Grewal

rsg(£kvn.com

6

Klaus Hemingway Hamm
7

khamm(£kvn.com, efiing(£kvn.com; wik(£kvn.com
akrishnan(£kvn.com, efiling(£kvn.com; rthomas(£kvn.com
mlemley(£kvn.com, srosen(£kvn.com

Ajay Krshnan
8

Mark A. Lemley
9

Michael H. Page
10
11
Robert Nathan Phillps

mhp(£kvn.com, efiing(£kvn.com; sjr(£kvn.com; nsn(£kvn.com
philipsr(£howrey. com, gagnons(£howrey. com
cplater(£kelleydrye. com, heberhart(£kelleydrye. com

12
13

Caroline Claire Plater
David A. Rammelt

drammelt(£kelleydrye.com, sdunlap(£kelleydrye. com

14 Notice will be delivered by other means to:
15 Paul W. Garrity Kelley Drye & Warren LLP
16 101 Park Avenue

New York, NY 10178
17 18

19

20
21

22
23

24
25

26
27

28
21
Case No. C 03-5340 IF (RS)

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT
(JFLC 1 )