FPX, LLC v. Google, Inc. et al

Filing 76

***DEFICIENT DOCUMENT, PLEASE IGNORE.***MOTION Exclude the Expert Report and Opinion of Thomas J. Maronick and Brief in Support by AOL, LLC., Google, Inc., IAC/InterActiveCorp, MySpace, Inc., Turner Broadcasting System, Inc., YouTube, LLC. (Attachments: # 1 Declaration of Carl Butzer, # 2 Exhibit A to Declaration of Carl Butzer - part 1, # 3 Exhibit A to Declaration of Carl Butzer - part 2, # 4 Exhibit A to Declaration of Carl Butzer - part 3, # 5 Exhibit A to Declaration of Carl Butzer - part 4, # 6 Exhibit A to Declaration of Carl Butzer - part 5, # 7 Exhibit A to Declaration of Carl Butzer - part 6, # 8 Exhibit A to Declaration of Carl Butzer - part 7, # 9 Exhibit A to Declaration of Carl Butzer - part 8, # 10 Exhibit A to Declaration of Carl Butzer - part 9, # 11 Exhibit A to Declaration of Carl Butzer - part 10, # 12 Exhibit A to Declaration of Carl Butzer - part 11, # 13 Exhibit A to Declaration of Carl Butzer - part 12, # 14 Exhibit A to Declaration of Carl Butzer - part 13, # 15 Exhibit A to Declaration of Carl Butzer - part 14, # 16 Exhibit B to Declaration of Carl Butzer, # 17 Declaration of Itamar Simonson, # 18 Exhibit 1 to the Declaration of Itamar Simonson, # 19 Text of Proposed Order)(Babcock, Charles) Modified on 9/20/2010 (sm, ).

FPX, LLC v. Google, Inc. et al

Doc. 76 Att. 10

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now.
Q·

All right.

Let's go to page 32

and go to question number 6? A.
Q·

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Uh-huh. You asked, "when you search using

a specific company name or trademark do you expect the ask.com sponsored links to be 'sponsored' by that particular company or trademark holder?" A. Q· Did I read that correctly?

Yes, you did. The word sponsored in quotes, why

did you put the words sponsored in quotes? A. Because that was the -- I wanted

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to separate it from the fact that it's a sponsored link. We have -- because of the

Lanham Act concepts, criteria sponsored by associated, affiliated with, I wanted to somehow separate it. Sponsored by sponsored by. That's

why I put the second sponsored in quotes.
Q .

I appreciate that.

So did you

provide a definition of sponsored in the second sponsored in question number 6 on page 32? A.
Q.

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No, I did not. Why not? Again, I was testing, again,
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consumers perceptions of this relationship in terms of the term sponsored, as questions 7 and
8 are other dimensions of that same thing. Q·

And you chose the word sponsored

because it comes out of the Lanham Act; right? A.
Q·

That's correct. You know what the Lanham Act is as

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a surveyor and lawyer; right? A.
Q.

As a surveyor, yes. Do you think any consumers or

users understood the word sponsor in quotation here as you've chosen it in question 6 to refer to the Lanham Act? A. They certainly didn't refer it to

the Lanham Act, but the concept from the Lanham Act, namely, that there's one of the dimensions of this affiliation or association is the word sponsored. Q. When you asked this question you

surely expected them to answer yes to that question; didn't you? A. I didn't have an expectation. I

wasn't surprised when they had, because of the fact that sponsored and sponsored are together. Q. Yeah, isn't that the case, that
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you asked them, you expected a sponsored link to be sponsored. Wouldn't you be shocked if the answer were to be no? A. I would have been surprised. That's part of the reason you

Q .

asked that question? A. Again, no, no, I didn't, because I wanted to get that answer. Again, I was testing the extent to which that component of the Lanham Act, the relationship they saw with the sponsored link. Q. Question number 6, you could have

asked a different question. You could have asked them, do you expect or do you not expect that the ask.com sponsored links to be sponsored by that particular company or trademark holder. You could have asked that question; couldn't you? A. There are all kinds of different

ways to ask a question. Again, that would have still had the word sponsored in there twice, so. Q. I agree with that. You could have

at least indicated by the question that there is a choice of either you expect it does or you expect it doesn't. You could have asked a
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different question; agreed? MR. FENSTER: Object to form. THE WITNESS: That kind of a question is typically asked in a -- in the way you're drafting it is where the consumers don't see the response options, but where the consumers see the response options as they do in an Internet you don ' 't have to ask that, do you expect or don't you expect, because they see the response options in front of them. So I don't believe you need to do it. I think the most artful way to do it is simply ask a straightforward question where they see the response option in from of them. BY MR. MORAN: Q. leading? A. No, I don't believe it is. There is a problem with the fact that the sponsored is in there twice but, again, that's the nature of the fact that the term that is used is sponsored links and the Lanham Act component is sponsored links. It created a problem, but I didn't know any other way to get around that. Q. When you were designing question
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Do you agree question 6 is

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MR.

FENSTER:

Object to form. Again, I didn't get

THE WITNESS:

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into that kind of depth of analysis whether it was a business relationship or some other kind of relationship.
BY MR. MORAN:

Q.

Okay.

When the 200 respondents

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were answering the Ask questions, the Google questions, and the Yahoo questions, did you ever rotate the order of questions 6, 7 or 8? A. Q. chose? A. Q.
A.

No, I did not. Could you have done so if you so

No, I don't think so. Zoomerang doesn't offer that?
No.

It does not offer rotation of

the questions.

Typically rotation is not of the

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questions, but rather the response options. Q. Have you ever rotated the order of

questions in any surveys you've done? A. Q. I can't recall. Have you ever -- strike that. Why didn't you ask any open-ended questions on these surveys? A. Because it didn't seem that there

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was a need to.

I wasn't asking -- typically

open-ended questions are advertising studies where you're trying to find out what consumers are taking from an ad in terms of what does the ad say or suggest, what is said or suggested by the ad. Here I'm trying to get at much more specific issues, namely, the extent to which they see a relationship, specifically these three components of a relationship. Q. Were the right three words that

you tested here in questions 6, 7 and 8 namely, sponsored, related to, or affiliated, in this order, was that important to you in your work in this case? MR. FENSTER: THE
WITNESS:

Object to form.
I

didn't think about

the order of them, it didn't really matter to me. I was looking at the totality of those

three responses.
BY MR. MORAN:

Q.

So from your perspective would it

have changed any of the work or conclusions or opinions you've reached in this case if the surveys would have switched the order of

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