FPX, LLC v. Google, Inc. et al

Filing 79

MOTION to 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 Errata 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 Declaration of Itamar Simonson, # 19 Text of Proposed Order)(Babcock, Charles)

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FPX, LLC v. Google, Inc. et al Doc. 79 Att. 1 AN EMPIRICAL ANALYSIS OF CONSUMERS' UNDERSTANDING OF THE RELATIONSHIP BETWEEN SPONSORED LINKS AND "SEARCHED FOR" LINKS ON INTERNET SEARCH ENGINES Submitted to: Russ August Kabat Los Angeles, CA Submitted byDr. Thomas J. Maronick , DBA, JD Professor of Marketing Towson University Towson , Maryland 21252 Date: June, 2010 m EXHIBIT Roport -x 11^d(`txllc iXZ Ex. 2 Mayronick Dep. - Page I Dockets.Justia.c AN EMPIRICAL ANALYSIS OF CONSUMERS' UNDERSTANDING OF THE RELATIONSHIP BETWEEN SPONSORED LINKS AND "SEARCHED FOR" LINKS ON INTERNET SEARCH ENGINES Dr. Thomas J. Maronick, DBA, JD QUALIFICATIONS I am a Professor of Marketing at Towson University in Towson , Maryland, and have been a member of the Marketing faculty since 1987, My primary teaching responsibilities are undergraduate and graduate courses in Marketing Research and Marketing Strategy . My educational background includes an undergraduate degree in Philosophy from St. Thomas Seminary , a Masters in Business Administration from the University of Denver, a Doctorate in Business Administration with a major in Marketing from the University of Kentucky, and a JD from the University of Baltimore School Of Law. My curriculum vita is attached as Exhibit A and provides a more detailed summary of any educational background and professional experience. BACKGROUND AND EXPERIENCE From 1980 through 1997, I was the Director of the Office of Impact Evaluation in the Bureau of Consumer Protection at the Federal Trade Commission (FTC). In that capacity I served as the FTC staff expert on marketing , advertising , consumer behavior, and survey matters, and provided advice on marketing - related matters to the legal staff in each of the Bureau ' s Divisions ' and to the Director and Associate Director of the Bureau of Consumer Protection . As the Director of the Office of Impact Evaluation, I also designed and implemented over 300 consumer studies on behalf of the Commission in 1 The Divisions of the Bureau of Consumer Protection were: Enforcement, Marketing Practices, Advertising Practices, and Credit Practices. 2 Ex. 2 Maronick Dep. - Page 2 support of its litigation activities. Since 1997, when I left the FTC, I have served as an independent marketing and advertising consultant and have been qualified as an expert in deceptive marketing and advertising matters in numerous state and federal jurisdictions. Included in my litigation experience is designing numerous consumer and business-tobusiness surveys and serving as a marketing expert in evaluating surveys undertaken by others as part of their litigation strategies. Based on my educational background, my experience at the FTC, and my experience as an independent consultant, I consider myself and have been qualified as an expert in marketing and survey research and in the evaluation of marketing practices of firms operating in the marketplace. MATERIALS REVIEWED I. Class Action Complaint SCOPE OF ENGAGEMENT I have been retained by attorneys representing class plaintiffs to design two consumer surveys to assess consumers ' interpretation of the relationship between search page results and "sponsored links" found on search page results. The surveys assess consumers ' perceptions of generic and hypothetical sponsored links that may be presented to a user on Google . com, Yahoo,eom, and Ask.com search page results (Survey 1) and consumers ' perceptions of actual sponsored links that are presented to a user as part of Google search page results (Survey 2). The studies also assess consumers' perception of the likelihood of being able to purchase the "searched for" company or trademark holder ' s product or service from both hypothetical and actual sponsored link firms, In designing the surveys I am relying on my educational background, my academic /teaching background , and my professional experiences designing consumer 3 Ex. 2 Maronick Dep. - Page 3 surveys for litigation as described above and in my Curriculum Vitae. I am being compensated at $450.00 per hour. My compensation is not dependent on the results of the surveys or my opinions. SUMMARY OF OPINION This research reported here has three parts. The first two surveys are drawn from a single sample frame (i.e., an internet panel). The first survey assesses consumers' perceptions of generic sponsored links across three internet search engine platforms (i.e., Google, Yahoo, Ask.com) and consumers' perceived likelihood of being able to buy a generic "searched for" product or service from the sponsored link firm. The second survey assesses consumers' perceptions of their likelihood of being able to buy a specific product (i.e., iPad) from three hypothetical sponsored links. "Apple.com," "Bob's Electronic Mart," and "iPadd $89.34 On Sale." The third survey is drawn from the same internet panel and assesses consumers' perceptions of their likely ability to buy the products or services from actual sponsored links on the Google search results page for two particular products and services, here Trek bicycles or Southwest Airlines tickets, The survey results revealed that high percentages of respondents believe they could buy the "searched for" product or service from generic sponsored links. The data also revealed that a very high percentage of consumers exposed to a "realistic" hypothetical sponsored link (Apple.com) and actual sponsored links (Smartfares.comlSouthwest, BikesDirect.corn) found on the Google search results page for Southwest Airlines and Trek bicycles believed they could buy the product from the sponsored link firms, Also, between 40% and 48% of respondents believe they could definitely or probably buy an iPad from less specific hypothetical sponsored links (i.e., "Bob's Electronic Mart" and "iPadd $89.34 On Sale"). Thus, in my opinion, the three Ex.. 2 Maronick Dep. - Page 4 surveys described above provide strong objective evidence of initial interest confusion among consumers in connection with search results pages that contain sponsored links for companies that do not sell the "searched for" company or trademark holder's product or service. Additionally, significant percentages of respondents (42% - 71 %), when asked about hypothetical sponsored links, believe the sponsored links that are found on intereet search results pages are either "sponsored by," "related to," or "affiliated with" the company or trademark holder's products or services. Also, when shown actual sponsored links on search results pages for specific "searched for" brands (e.g., Southwest Airlines, Trek bicycles), the percent of respondents who believe the sponsored links are "sponsored by," "associated with," or "affiliated with" the trademark holder ranged from about two-thirds for the a less well-known brand (i,e,, Trek bicycles) to about one-third for the more well-known brand (i.e., Southwest Airlines). These perceived relationships, i.e., that the sponsored links are sponsored by, associated or related to, or affiliated with the "searched for" company or trademark, provide a strong rationale for consumers' belief that they are likely to be able to buy the desired product or service from the sponsored link when they undertake a search for a company or trademark and see the sponsored link on the resulting search results page. The consistency of findings across different types of trademarks (generic, hypothetical, and actual) and across multiple types of product categories (electronics, bicycles, and airline tickets) indicates that consumers' beliefs about their ability to buy the "searched fvr" goods and services from the sponsored links is common regardless of the trademarks searched for. Similarly, the consistency of these findings shows that consumers believe the sponsored links are sponsored by, associated with, or affiliated 5 Ex. 2 Maroni,ck Dep . - Page 5 with the "searched for" company or trademark holder, regardless of the particular "searched for" trademark. In my opinion, this is because Google has created an expectation that consumers will be able to buy the company's products or services from the sponsored link firm by the inclusion of the sponsored link on the "searched for" company or trademark results page. EMPIRICAL RESEARCH Overall Methodology. The principle objective of the surveys was to assess consumers' understanding of the relationship between "searched for" internet search results and "sponsored links" found on those search results pages. The data were collected using the Zoomerang.com internet survey platform, with the sample drawn from an internet panel of individuals who have agreed to provide demographic information so the sample selected can reflect the conditions specified by the researcher. The individuals also agree to participate in surveys on a periodic basis. Online surveys using internet panels is a well-accepted approach in the field of conducting advertising and consumer surveys . The universe for the first survey (Survey 1) were individuals 21 and older who used either Google, Yahoo or Ask.com search engines and were familiar with sponsored links that are found on the search results pages. Following Zoomerang.com's standard practice, panel members were sent an email message inviting them to participate in an online survey. There was no mention of the topic of the survey in the invitation email. A total of 200 completed questionnaires each from respondents who used each of the three search engines (i.e,, Google, Yahoo, or Ask) are included in the analysis below. According to Cambiar (May, 2006) 66% of marketing research firms used pre-recruited panels for about one-third of their research. 2 Ex, 2 Maronick Dep. - Page 6 The universe for the second survey (Survey 2) were individuals 21 and older who used the Google search engine and used, or would consider using an internet search engine either for making an airline reservation (on Southwest Airlines) or would consider using an internet search engine for information about a new bicycle (Trek) and were familiar with sponsored links that are found on the search results pages for the trademark holders (e.g., Southwest Airlines and Trek Bicycles), As in Survey 1, following Zoomerang.com's standard practice, panel members were sent an email message inviting them to participate in an online survey. There was no mention of the topic of the survey in the invitation email. A total of 200 completed questionnaires each from respondents who used the Google search engine for either a Southwest Airlines reservation or for information about a Trek bicycle they might consider purchasing are included in the analysis below.3 Since the respondents in all surveys use Google and use or would consider using Google for information in general and relative to the products and services that are the subject of Survey 2, i.e., airline travel, Trek bicycles, the respondents are in the target market for the trademarked goods and services and, therefore, in the universe that is appropriate for this research. ethodola - Survey 1. Respondents who qualified for the Survey 1, i.e,, used internet search engines and used one of the three search engines (Google, Yahoo, Ask.com) were first asked how frequently, if at all, they used company names or To obtain 200 completed surveys from Trek respondents required a sample of 2084 compared to 252 respondents to complete the Southwest airlines part Survey 2. This suggests that identifying the perceived relationship between "searched for" trademarks and sponsored links is likely to be exponentially more difficult and time consuming with less well known brands. 7 3 Ex. 2 Maroniek Dep. - Page 7 trademarks as search terms (Q3)4 or generic product or service terms when doing an internet search (Q5). They were then asked whether they were familiar with "sponsored links" that appear on some search results pages (Q6) and specifically Google (Yahoo/Ask) search pages (Q7) 5. They were then asked whether they thought the "sponsored links" on the search results page were sponsored by the "searched for" company or trademark holder (Q8), were related to that particular company or trademark holder (Q9), or affiliated with that particular company or trademark holder (Q10). Respondents were than asked whether they thought they could buy the "searched for" company or trademark holder's goods or services through the sponsored link Q11). Respondents were then asked whether they thought they could buy an Apple Wad from an Apple.com sponsored link (Q14), a "Bob's Electronic Mart" sponsored link (Q 15), or from a sponsored link that said "iPadd $89.34 On Sale" (Q16). Finally, respondents were asked three demographic questions (gender, age, education). [Questionnaires for Survey 1 are attached as Exhibit Bf Findings - Surve1, As noted in Table 1, the majority of consumers (59% 72%) use a company name or trademark as a search term when using the Google, Yahoo, or Ask search engines, while even higher percentages (77% - 83%) use generic product or service terms when doing an internet search [Survey 1 results are attached as Exhibit C]. I 4 Respondents were directed to "Don't know/Not sure" if they were unsure of an answer. They were also directed not to guess, 5 The question numbers related to the Google section of the survey. Comparable questions were asked for the Yahoo.com and Ask.com search engines. No respondent was asked about more than one search engine. 6 The Survey I questionnaires are labeled Survey-x, and include: screener, Ask.com, Yahoo.com, and Google.com. The Survey I results are labeled: Ask Landing Survey, Yahoo Landing Survey, and Google Landing Survey. Ex. 2 Maronick Dep. - Page 8 Table 1 Frequency Use Company Name/Trademark or Generic Term for Internet Search Q2 Frequency Use Company Name or Trademark for Search Alwa s Google Yahoo Ask.com Often. Sometimes Seldom Never Don't know/Not sure n Q3 Frequency Use Generic Term for Internet Search Mwa s 2 1% 41( 20%) 7$ 39010 56( 28%) 20( 10%) 4( 2%) 201 12 60/a 53 (26%) $1 40% 40 (200/0) 13 6%l0 2 1% 201 13 6% 77( 38%) 67 (3Z/, 29( 14%) 13 6%la 2( 1%) 201 Often Sometimes Seldom Never Don't know/Not sure N 7 3% 87(43%) 80 40% 15( 7%) 8(4%) 4( 2%) 201 I5 7% 81 (40%) 75 37% 22 (11%) 7( 3%) 1 201 12 (60/,) 100 ( 50% ) 67 (33%) 17 (8%) 4 20fo 1 201 As noted in Table 2, most respondents were familiar with sponsored links in general and with those found on Google and Yahoo search results pages. On the other hand, while a similar percentage of respondents in the Ask.com sample are familiar with sponsored links in general, significantly fewer are familiar with those found on Ask.cotn search results pages. e The standard error for a sample is calculated with the formula el _ e (pq)/n.. Thus, for "sometimes" use company name or trademark for Google searches (33%), the standard error is +/- 6.8%. Ex.. 2 Maroniek Dep. - Page 9 Table 2 Familiarity with Sponsored Links Q4 Familiar with Sponsored Google Yahoo Links in General Yes 164 82o/a 179 89% No 18 (9%) 7 (3%) Not sure 19 (9%) 15 (7%) n 201 201 Q5 Familiar with Specific S nsored Links Yes 141 (.86%) 130 (73%) No 8( 5%) 15 8% Not sure 15( 9%) 34 1901a n* 164 179 *Limited to those who said "Yes" to Q4. Perce tin f S r Ask.com 186 (93%) 4 (2%) 11 (50/0) 201 109 (590/,) 28 (15%) 49 (26%) 186 As noted in Table 3, over half of the Yahoo and Ask.com respondents (53% - 55%) expect that the sponsored link on the two firms' search results pages is "sponsored" by the company or trademark holder that the respondent had searched on (Q6 ), while 42% of Google search respondents believe the sponsored link is sponsored by the company or trademark holder. Also, two-thirds of respondents believe that the sponsored link is "related to" the " searched for" company Table 3 Perceptions of Sponsored Links Q6 Expect Sponsored Link Google Yahoo "Sponsored" by Company or Trademark Holder Yes 72( 55%) 59( 42%) No 44 31% 27 21% Not sure 38(27%) 31( 24%) N* 141 130 Q7 Expect Sponsored Link to be Related to Company or Trademark Holder Yes 92( 65%) 86( 66%) No 23 16/0 26( 200/,) Not stare 18( 14%) 26( 18%) N* 141 130 Ask.com 5$ (53D/,) 25( 23%) 26( 24%) 109 77 71010 17( 16%) 15( 14%) 109 Ex. 2 Maronick Dep. - Page 10 Q8 Expect Sponsored Link to be Affiliated with Company or Trademark Holder Yes 68 48% No 45 32a/o Not sure 28(20%) N* 141 *Limited to those who said "Yes" in Q5. 72 55% 38(29%) 20 15% 130 61 56% 29(27%) 19(17%) 109 or trademark holder (Q7), while about half believe that the sponsored link is "aff"iliated" with the company or trademark holder (Q8). Likelihood of Buying From Sponsored Links Generic. As noted in Table 4, the majority of respondents using each of the three search engines, believe they "definitely or probably" could buy the "searched for" product or service from the sponsored link marketer, with slightly more than half of the Google and Yahoo respondents holding that belief, while almost two-thirds of the Ask.com sample believed they could buy the "searched for" product or service through the sponsored link. Table 4 Likelihood Could Buy Company's Products From Sponsored Link Q9 Think you could buy "search for" company's product or service through s onsored link? Definitely could buy Probably could buy Might or Might not be able to buy Probably could not buy Definitely could not bu Don't know n** Google Yahoo Ask.com 16 (1 t%) 59 42a/o (53%]* 49(35%) 4(3%) 1 (10/0) 12(9(/ ) )o 24(18%) 48 37% 55% 43 (33%) 4(30/,) 3 2% $ 6% 28(26%) 43 (39%) [65% 31(28%) 3(3%) l1 3(3%) 109 141 130 * Combines "Definitely could buy" and "Probably could buy" percentages * * Limited to those who said "Yes" in Q5. Ex. 2 Maronick Dep. - Page 11 Likelihood of Purchasing from Sponsored Link --- Wad, Respondents were asked if they were familiar with the iPad. Those who answered affirmatively (between 83% and 90% across the three search engine cells) were first asked whether they thought they could buy an Wad from an "Apple.com" sponsored link. As noted in Table 5, over 80% of the respondents in each search engine cell believed they either "definitely or probably" could buy an Wad through the Apple.com sponsored link. Table 5 Could Buy Wad from Apple.com Sponsored Link Q12 Think you could buy Wad from Applexom s p onsored link? Google Yahoo Ask.com Definitely could buy 59(47%) 56(49%) 41(46%) 45 (36% [83% * 37 32%) [81%] 36 40%) 86%] Probabl could buy Might or Might not be able to 19(15%) 14(12%) 9(10%) buy Probably could not buy 4 4% 10%) 3(3%) Definitely could not buy 11 Don't know 2(2%) 11 2(2 0/,) n** 126 114 90 * Combines "Definitely could buy" and "Probably could buy" percentages ** Limited to those who said "Yes" to Q5 and are familiar with iPad (Q10) However, when asked whether they thought they could buy an iPad from a sponsored link called "Bob's Electronic Mart," as noted in Table 6, a majority or near majority of Table 6 Could Buy Wad from "Bob's Electronic Mart" Sponsored Link Q13 Think you could buy Google Yahoo Ask.corn Wad from " Bob's Electronic Mart " s p onsored link? Definitely could buy 12(10%) 24(21 0/,) 17(19%) Probably could buy 48 38% [48%1* 51 45!0 66% 34 (38% 57% Might or Might not be able to 53 (42!0) 28(25%) 25(28%) buy Probably could not bu 4 3% 4(4%) 12(13%) Definitely could not buy 4 3% 3 (30/,) 2( 2%) Don't know 5 4% 4 4% n** i26 114 90 * Combines "Definitely could buy" and "Probably could buy" percentages Ex. 2 Maronick Dep. - Page 12 * Limited to those who said "Yes" to Q5 an are familiar with iPad (Q 10) respondents (48% - 66%) in each search engine cell believe they either "definitely or probably" could buy the product through the `Bob's Electronic Mart" sponsored link. Similar results, although with somewhat lower percentages (40% - 59a/o), were also found when respondents were asked whether they could buy an iPad from a sponsored link called "iPadd $89.34 On Sale" (Table 7). Table 7 Could Buy iPad from "iPadd $89.34 On Sale" Sponsored Li Q14 Think you could buy Google Yahoo Ask.com Wad from "iPadd $$ 9.34 On Sale" sponsored link? Definitely could buy 29(23%) 31(27%) 35(39%) Probably could buy 22 17%) [40%]* 25 2201x) [49%] 18 (20a/a 59% Might or Might not be able to 30(24%) 15 (13%) 12(13%) bu Probabl could not buy 16(13%) 15 (13%) 10(11%) Definitely could not buy 25 (20% 33% 24 21% 34% 14 (160/a 27 0/a Don't know 4(3%) 4(4%) 1 1% n** 126 114 90 * Combines "Definitely could buy" and "Probably could buy" percentages Limited to those who said "Yes" to Q5 and are familiar with Wad (Q10) Conclusions -- Suryey 1. The data from Survey 1 show that consumers using the internet to search for products and services are familiar with sponsored links, including those found on each of the three search engines (i,e., Google, Yahoo, Ask.com). Moreover, a majority of respondents across the three search engines believe that the sponsored link firm is "sponsored by" the "searched for" company or trademark holder (42% - 55%), is "related to" the "searched for" company or trademark holder firm (65% 710/x), or "affiliated with" the "searched for" company or trademark holder firm (48% --56%). These results clearly reveal that respondents see a close connection between the sponsored limes and the organic link firms, i.e., the "searched for" firms, on each of the search engines. Ex. 2 Maronick Dep. - Page 13 More importantly , a majority of respondents believe they can buy the "searched for" trademarked product or service from the sponsored link, with the percentage of respondents holding such a belief between 53% and 65% across the three search engine platforms . This was found to be the case both when asked about generic sponsored links (see Q9), and when asked about a specific brand name product ( i.e., iPad). Thus, these results confirm the perception of a relationship between the sponsored link firms and the "searched for" firm on each of the search engines and the willingness of consumers to consider the sponsored links as a way to buy the company or trademark holder's products or services. Methodoloa. -, urvey 2. Survey two includes two samples drawn from the same internet panel as Survey 1. Respondents in both samples of the survey were screened to confirm that they used Google for internet searches. One sample ( Southwest sample ) was then asked whether they used internet search engines when making airline reservations , A total of 115 respondents qualified for the Southwest sample as having used the internet search engines when making airline reservations. The other sample (Trek sample) was asked whether they: had a bicycle , had used or would consider using an internet search engine for information about bicycles they might consider buying, and would consider buying a Trek bicycle if they were in the market for a new bicycle , A total of 200 respondents qualified for the Trek sample, as using internet search engines for information about bicycles and would consider purchasing a Trek bicycle . [ Questionnaire for Southwest Airlines and Trek Bicycles attached as Exhibit D]9 9 The Southwest Questionnaire is labeled FPX-1, The Trek questionnaire is labeled FPX-2. The results are similarly labeled. I Ex. 2 Maronick Dep. - Page 14 After being qualified, respondents in each sample were shown an internet search results page for the respective companies, i.e., the search pages they would see if the had searched on Southwest Airlines or Trek Bicycles. Both search results pages contained sponsored links. Respondents were asked to note a particular sponsored link on the search results page ("Smartfares.com/Southwest;" "BikesDirect.com"). Respondents in the Southwest sample were then asked (Q8) "How likely is that you would be able to buy a ticket for a Southwest Airlines flight if you click on the Sm.artfares.com/Southwest sponsored link?" Respondents in the Trek sample were first asked (Q11) "How likely is it that you would click on the BikesDirect.com link if you were interested in buying a Trek bicycle." They were then asked (Q12) a question comparable to Q8 in the Southwest sample, i.e., "How likely is it that you would be able to buy a Trek bicycle from BikesDirect.com if you clicked on the `BikesDirect.com' sponsored link?" Respondents in both samples were then asked whether the sponsored link firm on the search results page was. associated with Southwest Airlines/Trek, "sponsored by" Southwest Airlines/Trek, or affiliated with Southwest Airlines/Trek. Findin gs - Survey 2 As noted in Table 8, 62% of respondents in the Trek sample are likely to click on the BikesDirect.com link if they were interested in buying a Trek bicycle.10 [Results from Survey 2 for Southwest Airlines and Trek Bicycles attached as Exhibit Ej. 1 There was no comparable question in the Southwest sample. Ex. 2 Maronick Dep. - Page 15 Table 8 Likelihood of Clicking of Sponsored Link (Trek Samule Definitely would click 53(26%) 95 48%) [74%]* Probably would click Might or mi ht not click 29( 14%) Probably would not click 16 ( 8%) Definitely would not click S 2% Don't know whether would click 1 N 200 *Combines "Definitely would click" and "Probably would click" percentages Likelihood Could Buy from Sponsored Link . Respondents in both samples were asked how likely is it that they would be able to buy a ticket ( Southwest sample) or bicycle ( Trek sample) if they clicked on the sponsored link. As noted in Table 9, 60% of the Southwest sample and 67% of the Trek sample believe they "definitely" or "probably" could buy the ticket/bike from the sponsored link. Table 9 Likelihood Could Buy from Sponsored Link. Southwest $ Trek 12 Definitel y could buy 44(22%) 31 (27% ) 38 (33 10 60%]* 102 5110 73% Probabl y could buy Mi ht or might not be able to buy 25 (22%) 40(20%) 8 ( 4%) Probabl . could not buy 8 ( 7%) 2 7 60Xo) Definitel y could not buy Don't know whether could buy 6 ( 5% ) 4 (2%) N 115 200 * Combines "Definitely could buy" and "Probably could buy" percentages Perception of Sponsored Links. Respondents were then asked whether, based on what is said or suggested on the Internet search results page, whether the sponsored link (i.e,, smartfares.com/Southwest; BikesDirect.com) were: associated with the airline/Trek, "sponsored" by the airline/Trek, or affiliated with the airline/1`rek. As noted M Ex. 2 Maronick Dep. - Page 16 Table 10 rceptions of Sponsored Links Sponsored Link Associated Southwest with Airline/Trek? Yes 42( 37%) No 41( 36%) Not sure 34( 300/,) N 115 Sponsored Link "Sponsored by" Airline/Trek? Yes 41 36010 No 38 33010 Not sure 36( 31%) 115 N Sponsored Link Affiliated with Airline/Trek? Yes 47( 41%) No 40 35% 29( 25%) Not sure N 115 Trek 138 69% 33( 16%) 29 14% 200 123 62% 35( 18%) 42 210/0 200 129( 64%) 351 18%)36( 18%) 200 in Table 10, approximately one-third of the Southwest sample respondents believe "smartfares.com/Southwest" is associated with Southwest Airlines, "sponsored by" Southwest Airlines, and affiliated with the airline. On the other hand, with Trek, a less well known brand than Southwest Airlines, approximately two-thirds of respondents (62% - 69%) believe "BikesDirect.corn" is associated with Trek bicycles, "sponsored by" Trek bicycles, or affiliated with the Trek Bicycle Company. Concl u si o n - ^uEyjy 2. The results of Survey 2, like those of Survey 1, show that respondents see a strong relationship between a "searched for" company or trademark and the sponsored links found of the resulting Google search results page. Moreover, as was the case with the generic and hypothetical internet searches in Survey I, a significant majority of respondents (60% - 73%) who use the Google search engine to find specific company websites, here Southwest Airlines and Trek bicycles, believe they Ex. 2 Maronick Dep. - Page 17 "definitely" or "probably" could buy the product or service (bicycle/airline ticket) from the sponsored link. OVERALL ANALYSIS This research had three goals. First, to assess consumers' perceptions of generic sponsored links across three internet search engine platforms (i.e., Google, Yahoo, AAsk.com) and their likelihood of being able to buy a "searched for" product or service from the sponsored link firm. Second, to assess consumers' perceptions of their likelihood of being able to buy a specific product (i.e., Wad) from three hypothetical sponsored links: Apple.com, "Bob's Electronic Mart," and "iPadd $89.34 On Sale. Third, to assess the perceptions of consumers' in the target market for particular products and services, here Trek bicycles or Southwest Airlines tickets, about their likely ability to buy the products or services from actual sponsored links on the Google search results page for the respective companies, Table 11 is a summary of the results of the three elements of the research. As noted in the Table, very high percentages of respondents Table 11 Likelihood of Buying from Svonsored Link "Definitely" / "Probabl " Could Bu Generic S p onsored Link Table 4 53%* Hyp othetical Sponsored Link A le.corn Table 5 83% Bob's Electronic Mart Table 6 48% iPadd $89.34 On Sale able 7 40% S p ecific S p onsored Link Smartfares.com/Southwest (Southwest Airlines) 60% able 8 BikesDirect.com Trek Bicycles) Table 9 73' *Combines "Definitely could buy" and "Probably could buy" percentages believe they could buy the "searched for" product or service from a sponsored link from a "realistic" hypothetical sponsored link, i,e., 83% from Apple.com for the iPad and 60%" Generic and hypothetical sponsored link results for Google. For Yahoo and Ask,com results, see Table 4 it Ex. 2 Maronick Dep. - Page 18 73% from an actual sponsored link (Smartfares.com/Southwest; BikesDirect.com) found on the Google search results page for Southwest Airlines and Trek bicycles. Also, between 40% and 48% of respondents believe they could definitely or probably buy an iPad from less specific hypothetical sponsored links (i.e., "Bob's Electronic Mart" and "iPadd $89.34 On Sale"). Thus, there is strong objective evidence of initial interest confusion among consumers in connection with search results pages that contain sponsored links for companies that do not sell the "searched for" trademarked product or service. Table 12 is a summary of the perceived relationship between the sponsored link and the "searched for" trademark company. As noted in Table 12, significant Table 12 ummary - Perceived Relationships to Sponsored Links Generic S p onsored Link Specific S onsored )winks Google Yahoo Ask.com Smartfares. com/ BikesDirect. Southwest Corn Sponsored by com an Yes No Associated with/related to com p any 12 42% 31% 55% 21% 53% 23% 36% 3310 62% 18% Yes No Affiliated with com p an y 65% 16% 66% 20% 71% 16% 37% 36% 69% 16% Yes 48% 55% 56 % 41% No 32% 27% 29% 35% *"Don't know" responses not included in Table 64% 18% percentages of respondents (42% - 71 %), when asked about hypothetical sponsored links, believe the sponsored links that are found on internet search results pages are either "sponsored by," "related to," or "aff"iliated with" the company or trademark holder's 12 In Survey 1, term used was "related to," In Survey 2, tsrm used was "associated with" Ex. 2 Ma;lronick Dep. - Page 19 products or services. On the other hand, when shown sponsored links on search results pages for specific "searched for" brands (e.g., Southwest Airlines, Trek bicycles), the percent of respondents who believe the sponsored links are "sponsored by," "associated with," or "affiliated with" the trademark holder ranged from about one third for the wellknown brand (i.e., Southwest Airlines) to about two-thirds for the less well-known brand (i.e., Trek Bicycles). These perceived relationships, i.e., that the sponsored links are sponsored by, associated or related to, or affiliated with the "searched for" company or trademark, provide a strong rationale for consumers' belief that they are likely to be able to buy the desired product or service from the sponsored link when they undertake a search for a company or trademark and see the sponsored link on the resulting search results page. CONCLUSION The consistency of findings across different types of trademarks (generic, hypothetical, and actual) and across multiple types of product categories (electronics, bicycles, and airline tickets) shows that consumers' beliefs about their ability to buy the "searched for" goods and services from the sponsored links is common regardless of the trademarks searched for. Similarly, the consistency of these findings reveals that consumers believe the sponsored links are sponsored by, associated with, or affiliated with the "searched for" company or trademark holder, regardless of the particular "searched for" trademark. In my opinion, this is because Google has created an expectation that consumers will be able to buy the company's products or services from the sponsored link firm by the inclusion of the sponsored link on the "searched for" company or trademark results page. Submitted by: Ex. 2 Maronick Dep. - Page 20 M These perceived relationships, i.e., that the sponsored links are sponsored by, associated or related to, or affiliated with the "searched for" company or trademark, provide a strong rationale for consumers' belief that they are likely to be able to buy the desired product or service from the sponsored link when they undertake a search for a company or trademark and see the sponsored link on the resulting search results page. CONCLUSION' The consistency of findings across different types of trademarks (generic, hypothetical, and actual) and across multiple types of product categories (electronics, bicycles, and airline tickets) shows that consumers' beliefs about their ability to buy the "searched for" goods and services from the sponsored links is common regardless of the trademarks searched for. Similarly, the consistency of these fndungs reveals that consumers believe the sponsored links are sponsored by, associated with, or affiliated N{ith the "searched for" company or trademark holder, regardless of the particular "searched for" trademark. In my opinion, this is because Google has created an expectation that consumers will be able to buy the company's products or services from the sponsored link firm by the inclusion of the sponsored link on the "searched for" company or trademark results page. Submitted by: IC1 k, DBA, JD Frofesso rlCon sultant ate ,)o Ex. 2 Maronick Dep. - Page 21 EXHIBIT " A " Ex. 2 Maronick Dep. - Page 22 CURRICULUM VITAE THOMAS JOSEPH MARONICK PERSONAL INFORMATION 5911 Charlesmead Avenue Baltimore, Maryland 21212 (410) 435-8387 FAX (410) 532-2904 e-mail mar2nick@verizon.net Towson University Towson, Maryland 21252 (410) 704-4077 FAX (410) 704.3772 e-mail tmaronickatowson.edu EDUCATION huris_Doctor University of Baltimore School of Law, Baltimore, Maryland 1980 -Emphasis on Corporate/Business and Consumer Law -Admitted to the Bar, State of Maryland Doctor of Business Administration University of Kentucky, Lexington, Kentucky 1974 -Major in Marketing; Minor in Management and Org, Behavior -Dissertation: "A Multivariate Analysis of Organizational Climate in the Channel of Distribution" . in s Administration 1966 Raster of Science ' University of Denver, Denver, Colorado -Major in Marketing ACADEMIC APPOINTMENTS Professor of Marking Towson University, Towson, Maryland, 1987-- Present -Responsible for teaching courses in Marketing Management, Marketing Strategy, Marketing Research, Marketing Seminar, Ethics/Public Policy Associate Professor of Marketing University of Baltimore, 1974 to 1983 (on Leave 1980 -- 83) -Responsible for teaching undergraduate and graduate courses in Marketing, Marketing Management, Marketing Research, Consumer Behavior, Business Policy & Strategy, Small Business Strategy NON-ACADEMIC EMPLOYMENT L)irector-Office, of Impact Evaluation, Federal Trade Commission 1980 -- 1997 Bureau of Consumer Protection, 1980 -- 87 [Full-time]; 1987 -- 97 [Part-time] -Served as the FTC=s in-house expert on marketing and survey matters. -Responsible for design and implementation of over 300 marketing and consumer surveys undertaken by Commission as part of policy-making and litigation activities. -Provided expert advice/testimony to staff on marketing & consumer behavior issues Marketing Consultant 1997 -- present -Provide expert advice/guidance on marketing strategy and consumer research issues as part of litigation support teams for plaintiff and defendant clients -Serve as testifying expert witness in consumer-related litigation, class-action certification, deceptive advertising, Lanham Act issues cases, consumer survey research -Have undertaken over 30 survey research projects for clients in litigation-related matters, including advertising and trademark/trade-dress issues Ex. 2 Maronick Dep. - Page 23 FIELDS OF SPECIAL INTEREST Marketing Mgt./Strategic Planning Marketing/Advertising Research Consumer Protection/Public Policy Executive Development Expert Witness/Lanham Act Matters EXPERT WITNESS/LITIGATION SUPPORT AREAS: Class Action Litigation Class Action Litigation Mark eting/Marketing Practices Advcrtising/Deceptive Advertising Trademark/Trade Dress/Consumer Confusion Consumer Behavior Survey Research/Advertising Research/Copy Testing Rent-to-Own Made -in-USA Automobile claims Pricing Advertising Warranties MATTERS: Advertising : Retailing: Telecommunications: Advertising/Deception Marketing/Promotional Materials Target Markets Software/Intemet: Internet ISP Software Claims Internet Domain Name Issues Package Goods: Deceptive Claims in Advertising Deceptive Labeling Direct Marketing: Advertising/Promotion Target Markets Door-to-Door Selling Trademark/Trade Dress: Consumer Confusion Search Criteria WEBSITE: adexpert.net PAPERS AND PUBLICATIONS (since 1990) "Current Role of Research at the Federal Trade Commission" in Patrick Murphy and William Wilkie Advertising Regulation: The Federal Trad^ Commission in the 1990',s, The (eds) Marketing University of Notre Dame Press, 1990. "Research in the FTC's Eye Care Rulemaking: Implications for Public Policy and Marketing." (with R. Stiff' and S. Gleason), Advances Ln Marketing and. Public Policy_ Vol. 2, 1991, Ex. 2 Maronick Dep. - Page 24 "Copy-Tests in FTC Deception Cases: Guidelines for Researchers " J rn! of Advertising Research Vol. 31 (6), (December) 1991. "Satisfaction and Other Issues in Hearing Aid Purchases by Elderly Consumers : A Quality of Life lssue " Proceeding , Quality-of- Life/Markaing Conference , Academy of Marketing Sciences, November, 1992. "The Role of Copy Test Research in FTC Decision Making" Proceedings , Association for Public Policy in Marketing , June, 1994, "An Empirical Investigation of Consumer Perceptions of'Made in USA' Claims" International Marketing ,evew, Vol. 12 (3) 1995. AAdvertising Research Issues From F v. Stouff ti W is & M t'n Vol. 14 (Nov.) 1995. ke o s CQM .@ (With J, Craig Andrews) Journal "Consumer Perceptions of Alternative Country-of-Origin Claims: An Empirical Analysis" Proceedings, Southern Marketing Association, Atlanta (Nov.) 1997. AThe Role of Qualifying Language on Consumer Perceptions of Environmental Claims" (with J. Craig Andrews) Journal of Consumer Affairs, Vol. 33 (2) (Nov.) 1999. "A Review of Direct-to-Consumer (DTC) Advertising and Sales of Prescription Drugs: Does DTC Advertising Increase Sales and Market Share?@ (with Riva Kahn) Journal eharmacl^uticaj Marke 'n M a amen Vol. 13 (4) (Nov.) 2001. "Extended Warranties: Consumer Misperceptions of Retailer Claims" Proceedings, European Institute of Retailing and Services Studies, Prague, Czech Republic (July, 2004) "Celebrity v. Company President as Endorsers of High Risk Products for Elderly Consumers@ Jo urn al P ro motion Managem e nt Vol. 11, (4), (Nov.) 2005. "Impact of a Festival Market on Downtown Shopping Behavior" Proceedings, AMS/Korean AMS CPM Conference, Seoul, Korea (July, 2006) "Consumer Perceptions of Extended Warranties" Journal of Retail agd-cQnsumer Services, Vol. 14 (2) (May) 2007. "Specialty Retail Center's Impact on Downtown Shopping, Dining, and Entertainment: A Longitudinal Analysis" I terntiona al f R it d Distribution Mana emen Vol. 35 (7) (November) 2007. "The Role of the Internet in Survey Research: Guidelines for Researchers and Experts" PMceedings, Global Business and Technology Association Conference, Madrid, Spain (July, 2008). "Country of Origin - Does It Matter Anymore?" Proceedings, Academy of Marketing Science 2009 World Marketing Congress, Oslo, Norway (July, 2009) "The Role of the Internet in Survey Research: Guidelines for Researchers and Experts" Journal of lob 1 Business and T c not , Vol. 5 (1), Spring, 2009. Resumc 9.09 Ex. 2 Maronick Dep. - Page 25 TESTIMONY SUMMARY -- 2006-2010 Thomas J. Maronick, DBA, JD 1. Alan Rosenberg v. U-Haul Santa Cruz (CA) Superior Court March, 2006 (trial testimony) --For Defendant (Fulbright & Jaworski, Los Angeles) 2. FTC v. Stefanchik U.S. District Court Western District of Washington at Seattle December, 2006 (deposition) --For Defendant (Williams, Kastner & Gibbs. Seattle) Williamson et. al., v. KB Home, et al. American Arbitration Association Dallas, Texas January, 2007 (Arbitration Hearing) --For Defendant (Sussman Godfrey, Houston) 3. 4. Holland v. Maple Chase/Kidde U.S. District Court for Northern Alabama Birmingham, AL February, 2007 (deposition) --For Plaintiff (Lanny S. Vines & Associates, Birmingham) Carmen Migliaccio, et al v. Midland National Life Insurance Co U.S. District Court - Central District of California Towson , Maryland 5. July, 2007 (deposition) --For Plaintiff (Lerach Coughlin LLP, San Diego and Bonnett Fairbourn PC, Phoenix) 6. Trafficschool. com Inc. v. Edriver, Inc et al. U.S. District Court - Central District of California Los Angeles, CA July, 2007 ( deposition) --For Plaintiff (Lewis Brisbois Bisgaard & Smith , Los Angeles) Ex. 2 Maronick Dep. - Page 26 7. Hadis Nafar, et al v. Hollywood Tanning Systems, Inc. U.S. District Court - District of New Jersey Philadelphia, PA January, 2008 (deposition) -- For Defendant (Blank Rome, Philadelphia) S. Brink' s Home Security, Inc. v. Apx Alarm Solutions U.S. District Court -- Southern District of Texas Houston, TX January, 2008 (deposition) -- For Defendant (McGinnis , Lockridge & Kilgore, Houston) 91 David Craig, et al. v. Maurice Tunstall, et al Circuit Court of Mobile County Alabama Mobile, Alabama August , 2008 ( deposition) -For Plaintiff (Taylor-Martino-Kuykendall, Mobile, AL) Primepoint LLC v. Primepay, Inc. 10. U.S. District Court - District of New Jersey Philadelphia, PA December, 2008 (deposition) Newark, NJ February , 2009 (trial) --For Defendant (Young & Thompson , Alexandria, VA) 11. In re Expedia Hotel Taxes and Fees Litigation Superior Court of Washington (King County) Washington, DC April, 2009 (deposition) --For Plaintiff (Hagans Berman , Seattle, WA) Farberware Licensing Company LLC v. Meyer Marketing Co. LTD U.S. District Court -- Southern District of New York 12. May, 2009 (deposition) - Washington, DC August , 2009 (trial) - New York --For Plaintiff (Bushell, Sovak, Ozer & Gulmi , New York) Ex. 2 Maronick Dep. - Page 27 13. Pennington Seed v. Scotts Miracle Grow, Inc. U.S. District Court - Southern District of Georgia Atlanta, GA May, 2009 (hearing) -- For Plaintiff (Winston & Strawn , Chicago) 14. Alcel, Inc v. Performance Review Institute, Inc. U.S. District Court - Eastern District of Virginia Washington, DC October, 2009 (deposition) --For Plaintiff (Dunlap , Grubb & Weaver, Leesburg, VA) 15. State of Iowa v. Adaptive Marketing, LLC District Court for Polk County Iowa Washington, DC October, 2009 (deposition) Des Moines, Iowa November, 2009 (trial) --For Defendants (Greenberg Traurig, New York) 16. Waterbury Hospital , et al v. U.S. Foodservice, Inc U.S. District Court - District of Connecticut New York January, 2010 ( deposition) -- For Plaintiff (Hunton & Williams , Washington, DC) 17. Christopher Kremmeli v. North American Company for Life and Health Insurance U.S. District Court - Central District of California Baltimore Maryland April, 2010 (deposition) --For Plaintiff' (Law Office of Larry A. Sackey, Los Angeles) 18. POM Wonderful LLC v. Organic Juice, Inc U.S. District Court -- Southern District of New York New York, NY May, 2010 ( deposition) --For Defendants (Dewey & LeBoeuf, New York) Ex. 2 Maronick Dep. - Page 28 19. Ryan Goldstein v. The Home Depot USA, Inc. U.S. District Court - Northern Georgia Washington, DC May, 2010 (deposition) --For Plaintiffs (Robbins, Geller, Rudman & Dowd, Boca Raton, FL) Ex. 2 Maronick Dep. - Page 29 EXHIBIT `B" Ex. 2 Maronick Dep. - Page 30 I Z zoomorang^ Ask Landing Survey Created: May 21 2010, 4:18 PM Last Modified: May 23 2010, 3:04 PM Design Theme: Besfo Blue Language: English Buttcn Options: Labels Disable Browser'Back" Button: False Search Survey-x Pee 1 - Question I - Open Ended - One Una MandatonyL Please enter the code that you received in your invitation. This will ensure payment of your incentive Page 2 - Heading Next are some questions about i nternet search engines . If you are not sure of an answer, Indicate " Don't know/Not sure," Please DO NOT GUESS Page 3 - Question 2 - Choice - One Answer [Mandatoryl How frequently, If at all, do you use a company's name or trademark (e.g., "Nike" or "McDonaid's" or "Big Mac") as a search term? O Always O Often O Sometimes O Seldom O Never O Don't know / Not sure Pape 4 - QuesVon 3 - Choice - One Answer ( Bullets) fMandstoryl How frequently, if at all, do you use a generic product or service term (e,g., "running shoes" or "burgers") when doing an internet search? O Always O Often O Sometimes O Seldom O Never O Don't know /Not sure Page 5 - Question 4 - Choice - One Answer ( Bullets ) f mandato rvl Are you familiar with "sponsored links" that appear on some search results pages ? They are often at the top or side of the search results page. O Yes O No (Skip to 16) O Not sure (Skip to 161 Ex. 2 Maronick Dep. - Page 31 Page 6 - Question 5 - Choice - One Answer ( Bullets) Are you familiar with Ask.com sponsored links? O Yes O No [Skip to 161 O Not sure [Skip to 16] Pag-e 7 - Question 6 - Choice - One Answer ( Bullets ) IMfandatoryl j 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? O Yes O No O Don't know/Not sure Pa e 8 - Quest[on 7 Choke - Ors Answer Bullets Mandator When you search using a specific company name or trademark, do you expect the Ask.com sponsored links to be related to that particular company or trademark holder in some way? -------------- O Yes O No O Don't know/ Not sure Page 9 - Question $ - Choke - One Answer ( Buliots) _ tnlandatoryl When you search using a specific company name or trademark, do you expect the Ask.com sponsored links to be ^ affiliated with that particular company or trademark holder? O Yes O No O Don't know/Not sure Page 10 - Question 9 _ Choice - One Answer ( Bullets ) Mandato If you were to click on the sponsored link that came up after a search for a company or trademark , do you think that you could buy the "searched for" company or trademark holder's goods or services through that link? O Definitely could buy company' s goods/services O Probably could buy company's goods/services O Might or might not be able to buy company's goods/service O Probably could not buy company's goodsfservlces O Definitely could not buy company's goods /servics O Don't know whether could or could not buy company's goods/servicos Page 11 - Question 10 - Choice - One Answer { Buffets Let's take an example. Are you familiar with the "Fad"? Mandato O Yes O No [Skip to 161 O Not sure [Skip to 161 Ex. 2 Maronick Dep. - Page 32 Page 12- Question 11 -Open Ended - One Line [Mandatory] Who makes the "iPad "? [PLEASE SPECIFY] Page 13 - Question 12 - Choice - One Answer ( Buttets ) _ _ [Mandatory] Assume you saw "Apple.com" as a sponsored link from a search for "iPad." Do you chink that you would be able to buy an iPad from that sponsored link, if you were to click on it? O Definitely could buy it O Probably could buy it O Might or mlght not be able to buy It 0 Probably could not buy It C7 Definitely could not buy it O Don't knowlNot sure Page 14 - Questlon 13 -Choice -One Answer BUlleta [Mandatory] Assume you saw " Bob's Electronic Mart" as a sponsored link from a search for "IPad." Do you think that you would be able io buy an iPad from that sponsored link, if you were to click on it? O O O O O O Definitely could buy it Probably could buy it Might or might not be able to buy It Probably could not buy it Definitely could not buy it Don't know/Not sure lMandatoryl Pa^e_ E5 ^C}uestlort 14 Choice, Ona Answer (Bullets Assume you saw "1Padd $89.34 On Sale" as a sponsored link from a search for 'Tad" and you were interested In purchasing an iPad, Do you think that you would be able to buy an IPad from that sponsored link, If you were to click on O Definitely could buy it O Probably could buy it O Might or might not be able to buy It O Probably could not buy it O Definitely could not buy it O Don't know/Not sure page 16 - Questlon 15 - Choice - One Answer Gender u!ietsy^ Wandatoryl O Male O Female Pala 17=Questlon 16 - Choice - One Answer (auilets) Age? O Linder 2l O 21 - 2a5 O 26 - 30 O 31 - 40 Mandat Ex. 2 Maronick Dep. - Page 33 O 4 9 - 50 4 51 - 60 O Over s0 Page 18 - Question 17 - Choke - One Answer ( Bullets ) Highest level of education achieved? _ [ Mandato ry O High school or less d Some college or technical school 4 2-Year college graduate 4 4-year college graduate U Graduate school/degree Thank You Page Redirect: <http://www.testspin.comlendpages/success.php> Screen Out Page Redirect: <httpVlwww,testspin.com/endpages/disqualify.php> Over Quota Page Redrect: <http://www,testspin.com/endpageslquotafull.php> Survey Closed Page The survey is now closed. Thank you for considering It. Ex. 2 Maronick Dep. - Page 34 Z zoomerang' Google landing survey (1) Created: May 21 2010, 4:33 PM Last Modified: May 23 2010, 12:12 PM Design Theme: Bask Blue Language: English Button Options: Labels Disable Browser "Back" Button: False Search Survey-x Page t - Question 1 - Open Ended - one Line _ _____1Mandata Please enter the code that you received In your Invitation. This will ensure payment of your incentive Page 2 Haading Next are some questions about Internet search engines . It you are not sure of an answer, Indicate "Don't know/Not sure." Please DO NOT GUESS Page 3 - Queetk>n 2 - Choice - One Answer Bullets v_ immdatoryj How frequently, if at all, do you use a company's name or trademark (e.g., "Nike" or "McDonald' s" or "Big Mac") as a search term? O Always O Often O Sometimes O Seldom Q Never O Don't know/Not sure Pa go 4 - Question 3 - Choice - one Answer Bullets Waodatoryl How frequently, If at all, do you use a generic product or service term (e.g., "running shoes" or "burgers") when doing an Internet search? O Always O Often O Sometimes O Seldom O Never O Don't knowlNot sure ___ j_MSandator _ [st re you familiar with "sponsored links" that appear on some search results pages? They are often at the top or side of the a rch results page. -?me 6 Question d -Choice - Onu Answer (Beiletsj...__.. O Yes O No [Skip to 16) O Not sore [Skip to 161 Ex. 2 Maronick Dep. - Page 35 Pa g e 6 - question 5 - Chow - One Answer ( Bullets) Are you familiar with Google . com sponsored links? __ _.,,_, lMandatoi y]_,. O Yes O No [Skip to 16] o Not sure ]Skip to 16] Page 7 - Question 6 - Choice - One Answer ( Buffets} IMandato tyl When you search using a specific company name or trademark, do you expect the Google . com sponsored links to be "sponsored " by that particular company or trademark holder? O Yes o No O Don't know/ Nol sure Page B - Question 7 - Choke - One Answer Bulieta tMandaloryl When you search using a specific company name or trademark, do you expect the Googie.com sponsored links to be related to that particular company or trademark holder In some way? O Yes O No o Don't know/Not sure (Mandeto yl T When you search using a specific company name or trademark, do you expect the Google.com sponsored links to be affiliated with that particular company or trademark holder? Page B - Questfon 8 - Choice - One Answer {Bugats) O Yes O No O Don't knowlNot sure Page 10 - Question g - Choice -One Answer Suriets __ jNandatory} If you were to click on the sponsored link that came up after a search for a company or trademark, do you think you could buy the "searched for" company or trademark holder's goods or services through that link? O Definitely could buy company's goods1services O Probably could buy company's goods/services O Might or might not be able to buy company's goods/service O Probably could not buy company's goods/services O Definitely could not buy company's goods/servics O Don't know whether could or could not buy company's goods/services Page _11 - Qllesllon 10_ Cholce - One Answer Bu11els (Mandatory] Let's take an example. Are you familiar with the "iPad"? O Yes O No [Skip to 161 O Not sure (Skip to 161 Ex. 2 Maronick Dep. - Page 36 Pe a 12 - Question II - Open Ended - One Line [Mandaio Who makes the "IPad-7 [PLEASE SPECIFY] e 13 - Qussdon 12 -Choice -One Answer Bullets iMandai [aAs'svme you saw "Apple.com" as a sponsored link from a search for 9Pad." too you think that you would be able to buy n IPad from that sponsored link, If you were to cllck on it? O Definitely could buy it O Probably could buy It U Might or might not be able to buy It O Probably could not buy it O Definitely could not buy it () Don't know/ blot sure Paoa 14 Qusstlon 13 - Choice - One Answer (Bullets m-datory] Assume you saw "Bobs Electronic Mart" as a sponsored link from a search for "IPad." Do you think that you would be able to buy an IPad from that sponsored link, if you were to click on t? O Definitely could buy It O Probably could buy it O Might or might not be able to buy it O Probably could not buy it O Definitely could not buy it C^ Don't know/Nat sure Pane 15 - Question 14 - Choice - One Answer (8ullels) JIVIandattry] Assume you saw'IPadd $89.34 On Sale" as a sponsored link from a search for "iPad" and you were Interested in purchasing an IPad. Do you think that you would be able to buy an IPad from that sponsored link, if you were to click on 0 O Definitely could buy it O Probably could buy It O Might or might not be able to buy It O Probably could not bury it O Definitely could not buy it O Don't know/Not sure Page 15 - Question 15 - Choice - One Answer ( Bullets) Gender _ [Mandatory] O Male Female pat 17 - Question 16-CChoice . One Answer (Bullets I andatoryt Age? O Under 21 0 21 - 26 O 26 - 30 O 31 - 40 Ex. 2 Maronick Dep. W Page 37 O 41-50 O 51 - 60 O Over 60 Pa a 18 - Question 17 - C4iolce -One Answer (Bulat Highest level of education achieved? IMpridatory) O High school or less O Some college or technical school O 2-Year college graduate O 4-year college graduate O Graduate school/degree Thank You Pogo Redirect: <h#tp:/lwww.testspin.com/endpageslsuccess.php> Screen Out Pale Redirect: <httpJlwww.testspin.comlendpagesldisqualify.php> aver Quota Pa F2ediract: <hitp:Ilwvvw .testspin.comlendpageslquotafutt .php> Suvey ctusea Pa The survey Is now closed . Thank you for considering It, Ex. 2 Maronick Dep. - Page 38 Z zoomerang' Search Survey Entry Point Croated: May 21 2010, 3:35 PM Last Modlfiad: May 23 2010, 3:01 PM Design Theme: Basic Blue Language: English Button Options: Labels Disable Browse r 'Back' Button: True Search Survey-x Pa e 1 - Question 1 - Cholaa - One Answer Bullets Do you use internet search engines? [Mandatoryl O Yes O No [Screen Out] Pa 2 - Question 2 - Ctwlc--Multlple Anvers {t3uflatsl fmartdatofy] Which of the following search engines, if any, do you use? [CHECK ALL THAT APPLY] u Ask.com [Skip to 31 u Yahoo.com [Skip to 41 0 Googte.com [Skip to 51 Ll AOL.com [Screen Out] LJ CNN.com [Screen Out] u YouTube.com [Screen Out] u Other, please specify Page 3 - Hoading Do not click the submit button Please click the link directly below to continue In the survey, http:/Iwww.zoomerang .WnVSurvey/WEB22APHES6B6Z Unconditional Screen Out Page 4 - Headlng Do not click the submit button Please click the link directly below to continue in the survey, htfp://www,zoomerang.com/Survey/WEB22APHET6B7M Unconditional Screen Out Ex. 2 Maron>iek Dep . - Page 39 Page BFieadirtg e 00 not click the submit button Please click the link directly below to continue in the survey, http:llwww.zoomerang,coTnISurvey/WEB22APHF FSBKT Unconditional Screen Out Page 6 - Reading Placeholder Thank You P499 Thank you for partlcfpating in this study. Sueen Out Page One or mare of your answers dsqualifes you from ihs survey. Over Quota Page _ The quota of respondents based on one or more of your answers Is filled. Surve Closed Page The survey is now closed , Thank you for considering It. Ex.. 2 Maronick Dep. - Page 40 z zoomerang. Yahoo landing survey Created: May 21 2490, 4:21 PM Last Modified: May 23 2010, 11:56 AM Design Theme: Basic Blue Language: English Button Options: Labels Disable Browser "Back" Button: False Search Survey-x Page 4 -Question I - Open Ended - One Llna T [Manger Please enter the code that you received in your invitation,. This wM ensure payment of your incentive Page 2 - Heading _ Next are some questions about internet search engfnes . If you are not sure of an answer, Indicate " Don't know/Not sure." Please D O NOT GUESS tMandatory] How frequently, if at all, do you use a company's name or trademark (e.g., "Nike" or "McDonald's" or "Big Mac") as a search term? O Always O Often O Sometimes O Seldom O Never Pege 3 - Question 2 - Choice - One Answer (Bullets) O Don't know/Not sure Page 4 - ouestio_n 3 Choice - one Answer ( Bullets [Mandatoryt How frequently, if at all, do you use a generic product or service term (e.g,, "running shoes" or "burgers") when doing an Internet search? O Always O Often O Sometimes O Seldom O Never O Don't know/ Not sure [Mandat, Are you familiar with "sponsored links" that appear on some search results pages ? They are often at the top or side of the search results page. Page 5-Question 4- Choice , One Answer ( Bullets ) O Yes O No (Skip to 16) O Not sure [Skip to 163 Ex. 2 Maronick Dep. - Page 41 Page 6 - Questlon 5 - Choice - one Answer (Bvllets) (_MAndalc Are you famillar with Yahoo.com sponsored links? O Yes O No [Skip to 161 O Not sure [Skip to 161 Pa e 7 - Question 6 - Choice - One Answer Bultals Mlandato When you search using a specifc company name or trademark, do you expect the Yahoo.com sponsored links to be "sponsored" by that particular company or trademark holder? O Yes O No O Don't know/Not sure Pa g e 8 - Question 7 - Choice _ One Answer ( Buleta) W [Mandatory} When you search using a specific company name or trademark , do you expect the Yahoo.com sponsored finks to be related to that particular company or trademark holder in some way? O Yes O No O Don't knowfNot sure Page 9 Question 6 -Choice - Ona Answer Buileis mm }MandatorYi, When you search using a specific company name or trademark, do you expect the Yahoo.com sponsored links to be affiliated with that particular company or trademark holder? O Yes O No O Don't know/ Not sure Manda10 If you were to click on the sponsored link that came up after a search for a company or trademark, do you thlnk that you could buy the "searched for" company or trademark holder' s goods or services through that link? O Definitely could buy company ' s goods/services O Probably could buy company ' s goods/services O Might or might not be able to buy company ' s goods/service O Probably could not buy company ' s goods/services Page 10 - Question 9 - Choice - One Answer (BuRels ) O Definitely could not buy company ' s goods/servics O Don't know whether could or could not buy company's goods/services Re a 11 - Question 10 - Ghotce -One Answer ( Bullets) lMandeloryl Let's take an example. Are you familiar with the "iPad"? O Yes O No [Skip to 161 O Not sure [Skip to 161 Ex. 2 Maronick Dep. - Page 42 Pag e 12 - Question 11 - O pe n Ended - One Llne andatory) who makes the "lead "? [PLEASE SPECIFY] (Mandatory} Assume you saw "Apple.com" as a sponsored link from a search for "lead." Do you think that you would be able to buy P ago 13 - Question 12 - Choice - One Answer ,,(Bullets) an Pad from that sponsored link. If you were to click on it? O Definitely could buy it O Probably could buy it O Might or might not be able to buy it O Probably could not buy it O Definitely could not buy It O Don't know/Not sure Pie 14 Question 13 - Chokes-One Answer (Buller _ (Mandatory] Assume you saw "Bob's Electronic Mart" as a sponsored link from a search for 'Tad." Do you think that you would be able to buy an iPad from that sponsored link, if you were to click on It? O Definitely could buy It O Probably could buy it O Might or might not be able to buy it O Probably could not buy it O Definitely could not buy it O Don't know/Not sure Peet 5 -Question 1 d -Choice -One Answer Bullets Mandatory Assume you saw "iPadd $89.34 On Sale" as a sponsored link from a search for "iPad" and you were interested In purchasing an !Pad. Do you think that you would be able to buy an IPad from that sponsored link, if you were to click on it? O Definitely could buy It O Probably could buy it O Might or might not be able to buy it O Probably could not buy it O Definitely could not buy It O Don't know/Not sure Page 16 - Question 15 - Choice - One Answer Bullets Gender [Mandatory} O Male O Female Pate 17 - Question 16 - Choice one _Answer (Bullets Age? O Under 21 O 21 - 25 O 26 - 30 C7 31 - 40 Mandates Ex. 2 Maronick Dep. - Page 43 O 41 - 54 O 51 - 60 4 Over 64 (Bullets) hest leveltiof education achieved? C) High school or less Q Some college or technical school O 2-Year college graduate 4 4-year college graduate 4 Graduate school/degree 1Mpqdat CqI -Hi Thank You Page Redirect: <http:/lwww.testspin.comfendpages/success.php> Screen Out Page _ Redirect: <http://www.testspin.com/endpages/disqualify.php> Over Quota Page F Redirect: <http://www.testspin.com/endpages/quotafull.php> Survey Closed Page The survey is now closed. Thank you for considering it. Ex. 2 Maronick Dep. - Page 44 EXHIBIT "C" Ex. 2 Maronick Dep. - Page 45 Zoomerang I Search Survey Entry Paint: Results Overview htrp://app,7oomerung.com/RepoWPrintResultsPage-aspx Search Survey Entry Point Results Overview Date: 6/2/2010 1:21 PM PST Responses: Completes I Partials R ker: No Mter applied Screen Outs I over Quota Z z oa m a ra n g- Do you use Internet search engines? Yes No 490 17 Total . 1()07 u..,,...... j-w..., -_ .__._ 100x6 96% 2, Which of the following search engines, If any, do you use? (CHECK ALL THAT APPLY) i 257 549 I i 871 142 76 Ask.com Yahoo.com Google . comT^ AoR.com CNN.com YouTUbe.com Other, please snecifv 26% 55% 68% 14% ^-- t235 154 24% 16% Do not click the submit button Please dick the link directly below to continue In the survey. http://www. zoomerang.com/Survey/WE622APHES6B62 Do not click the submit button Please dick the link directly below to continue in the survey, http://www, zoo mereng.com/Survey/WEB22APH ET6B7M Do not click the submit button Please click the link directly below to continue in the survey. http://www.zmmerang.com/Survey/WED22APHFF6BKT Placehod er 1 of 2 612/10 1:21 PM Ex. 2 Maronick Dep. - Page 46 Zoomorang I Search Survey Entry Point: Results Overview http:/tapp.zwmerang,corn/Report/I'rintResu%Page.aspx Products & Services I About Us I SupportlHelp Zoomerang Forums 0 2010 Copytht Market7ools Inc. All Rights Reserved, I Privacy Palley I Terms Of Use 2 of 2 612/10 1:21 PM Em 2 Maronick Dep. - Page 47 Zoomerang I Ask Landing Survey : Results Overview http://appzmmerang . rom/Report/ PrintResaltsPage.aspx Ask Landing Survey Results Overview Date: 6/2/2010 1;18 PM PST Resporrses: Completes Filter; No filter applied ^Cr ^^ Next are some questions about Internet search engines. If you are not sure of an answer, indicate "Don't know/Not sure," Please 00 NOT GUESS 2` How frequently, if at all, do you use a company's name or trademark (e.g., "Nike" or "McDonafd's" or "Big Mac") as a search term? i^ i Always Often Sometimes Seldom Never 13 77 67NY 6% 38% 33% _ 14% i^ 29 13 2 Total ., 201 _-.. _._..,..._,... Don't know/Not i 1% i sure 100TO _J 3. Haw frequently, if at all, do you use a generic product or service term (e.g., "running shoes" or burgers") when doing an internet search? Always Often I 100 67 t ow s E c i 50% Sometimes Seldom 17 4 1 0% Never Don't know/Not sure Total # 201 100% A ' Are you familiar with "sponsored links" that appear on some search results pages? They are often at the top or side of the search results page. ._.^..^__---__.---- ^ :.rte 1 of s 6010 1'18 PM Ex. 2 Maronick Dep. - Page 48 Zoomerang I Ask Landing Survey: Results Overview http://app.zoomtrang.com/ReporUTTintResul

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