John Beck Amazing Profits, LLC v. Google Inc. et al

Filing 61

MOTION to Exclude the Expert Report and Opinion of Thomas J. Maronick and Brief in Support by AOL LLC, Google Inc.. (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 Declaration of Itamar Simonson, # 19 Text of Proposed Order)(Babcock, Charles)

John Beck Amazing Profits, LLC v. Google Inc. et al

Doc. 61 Att. 6

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Q.

Why was Neiman Marcus not one of

the marks that you surveyed in this case? A. Well, looking at this exhibit,

both the other two search engines -- the sponsored links are well-known brands, so one wouldn't expect to find Neiman Marcus, buy Neiman Marcus clothes at a Bergdorf or Bloomingdales stores. competitive. Clearly they were

Searchers were not likely to

think, yes, I can buy clothes from Neiman Marcus at Bloomingdales. Q. Why was that important to your

work in this case? A. Again, I was trying to find out

for sponsored links the likelihood if they are to buy directly from those. It seems to me if

you get one that is a direct competitor that the answer is going to be no, I know both brands. The equivalent example would be can I buy Dunkin' Donuts at McDonald's or Krispy Kreme donuts. Clearly not. Q. You wouldn't expect any consumer

confusion with respect to those two you just mentioned? A. That is correct, I would not.

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You would not expect any initial confusion between Neiman Marcus or Bloomingdales or Bergdorf Goodman; correct? MR. FENSTER: THE WITNESS: Object to form. I wouldn't think so,

they are both well-known brands or marks. BY MR. MORAN: Q. So at this point in time have you

decided on the marks you were going to survey as of April 8th or are you still looking for marks to survey? A. time. We were still looking at that

I hadn't decided, we hadn't decided as to

what marks would be appropriate.
Q·

Okay.

What was going to be the

determining factor as to what would be the appropriate mark or marks to survey? A. Marks where there was -- they

weren't clearly identifiable as competitors, where it wasn't clear, for example, that the -the companies are in direct competition, trying to find sponsored links that were of not direct competitors. Q. A. Why? Because the whole issue is whether

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Q.

So did you go to the various

sponsored links and then click through that sponsored link and ascertain or determined whether or not they could purchase tickets or not purchase tickets on Southwest Airlines? Is that how you chose the sponsored links? MR. FENSTER: Excuse me. Object to form.

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THE WITNESS: That's how Southwest

Airlines was selected, because it was my understanding and confirmed by Mr. Meyer that you can't buy Southwest Airlines tickets on anything other than Southwest Airlines. And the second one that was suggested either by Mr. Meyer or me was the Trek website and looking at the Trek website I didn't see evidence that they sold -- at the sponsored link I didn't see where they sold or any evidence that they sold Trek bicycles. BY MR. MORAN: Q. As a result of that investigation,

that determination by you, you decided in this case to survey as to that particular sponsored link? A. That seemed to be an appropriate

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because -- you see below it it's not space, its specs to be determined, okay, not space. So

it's specifications to be determined and those were, again, with the first one, identified regular airline travelers. If you look at the

screener questions, do you use an airline, would you use an airline search engine to buy airline tickets. And I estimated that you see a 10 percent and then the second one, the same criteria, but here I thought it was actually going to be more difficult because we had to identify people who rode bicycles. We have to

go back and look at the screener questions. Q. Why was it important to you to

attempt to target regular airline travelers? A. Well, because, the Southwest

sample has to be people from the universe of airline travelers. If they don't go back and

look at the surveys -- if they don't travel on airline then they're not likely to search for airline tickets using a Google search or Southwest Airlines. Similarly, if they are not bicycle riders oriented in possibly buying a bicycle

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they wouldn't know of or consider a Trek bicycle, searching for Trek bicycles. So it's

getting people in the universe of the -- so I was able to draw the appropriate sample from the appropriate universe. Q. All right. And we'll talk about

the universe a little bit later, but do you know how many invitations were extended for potential respondents on the Trek survey? A. I don't know. I mean, in my

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report there's a footnote as to the number of people who responded to the Southwest and the Trek survey. And the significantly

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higher percent -- the issue is screen outs versus completes and a significant number of people who responded to the Trek survey screened out because they didn't meet the screening criteria, so the number was higher. Again,

using the 10 percent initial estimate, that's what I would base it on. Q. Okay. So it would be your

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testimony that at least or approximately 2,000 invitations would have been extended for the Southwest survey and 2,000 for the Trek survey, perhaps more for the Trek?
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