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. 8

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about to identify those sponsored links that might be initially interest confusing from those that are not confusing; have you? A. Q. No, we have not. We know from this morning's

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questions and your answers that, for example, the Neiman Marcus search results page; do you recall that? A. Q. Yes. That two of the sponsored links

that were displayed in response to that search, the one was by Bloomingdales, a competitor; correct? A. Q. Yes. And it indicated in the sponsored

link that it was Bloomingdales; right? A. Q. Yes. And it was your view that that

sponsored link was not susceptible to initial interest confusion; true? The very first sponsored link that came up on the right-hand side of the Neiman Marcus search was for Bloomingdales; correct? A. Q. I believe so, yes. It indicated that in some portion

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majority of people -- there may be some people who are confused and think iPAD is a Dell product, but I think most people would say I know iPAD is an Apple product and Apple is a competitor, a direct competitor. Q. So I guess then the likelihood of

initial interest confusion, in part, depends upon what the product is that's being sold. Would you agree with that? A. No. I think it has -- it's not so

much the product being sold as the strength of the brands or the marks that are in the searched for brand and the searched for trademark and the sponsored link brand or mark. Q. Okay. You would agree that the

likelihood of initial interest confusion would vary, depending upon the mark or the strength of the mark? MR. FENSTER: Object to form. THE WITNESS: I think that that certainly would be a factor. BY MR. MORAN: Q. Indeed, in your report you mention

that's a factor when you compare the well-known brand name of Southwest Airlines and the lesser
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well-known brand of Trek; true? A. Q. Yes. And so the initial interest

confusion or the likelihood of initial interest confusion would, in fact, vary, depending upon the strength of the brand, as you say in your own report; true? A. Q. Yes. Would that also -- but sometimes

there's -- you can have a brand that is not synonymous with the goods or services sold by either that brand or the company that owns that brand; true? MR. FENSTER: THE WITNESS: BY MR. MORAN: Q. All right. And would you agree Object to form. Yes.

that the possibility of initial interest confusion could also vary, depending upon the products or services sold, independent of whether or not they're a registered trademark for that good or service? A. I think there's a much -- my

results show that a much higher likelihood of initial interest confusion when it isn't -- when

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Q.

All right.

That's common.

It's

in your report, the difference between Trek and Southwest Airlines; right? MR. FENSTER:
THE WITNESS:

Object to form. Yes.

BY MR. MORAN: Q. All right. And then would you

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also agree the initial interest confusion could also be affected by the language that may be contained in the sponsored link? MR. FENSTER: THE WITNESS: Object to form. I think less so. I

hadn't really thought about that. BY MR. MORAN: Q. A. Q. Did you test for that? No, I did not. Suppose a search term is iPAD and

then the sponsored link that comes up is for PC Magazine. Would your results here suggest that

there is initial interest confusion as to that ad? A. Yes. I would think there would be

because, again, while you can't buy -- I don't believe you can buy an iPAD through PC Magazine, but the second part of the component, is there
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interest confusion to the extent they have an expectation of being able to buy a Delta ticket on United. Q. expectation? MR. FENSTER: THE WITNESS: Objection to form. There may be some. I guess Do you think consumers have that

I think most consumers probably do not. those two are now -BY MR. MORAN: Q.

Would you agree that you have to

look at each sponsored link, each ad at a time, to assess initial interest confusion? A. I think generically someone would Again, taking the first

have to look at it.

component, to the extent that is the consumer able to buy the product or service from the searched for firm on the sponsored link. If the

answer is no, by looking at them individually or collectively or however, if the answer is no, then you've got, you've got -Q. your mind? A. That's correct. MR. FENSTER: Can you let the Initial interest confusion, in

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