Isys Technologies v. Google et al

Filing 27

RESPONSE to Motion re 9 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order Objections To Declaration of Aaron Rowsell filed by Defendant Google. (Buschmann, Craig)

COOLEY LLP
Peter J. Willsey (pro hac vice pending)
Brendan J. Hughes (pro hac vice pending)
Email: [e-mail]; [e-mail]
1114 Avenue of the Americas
New York, NY 10036-7798
Telephone: [phone]; Facsimile: [phone]
HOLME ROBERTS & OWEN LLP
Roger Myers (pro hac vice)
Robert Stolebarger (pro hac vice pending)
Craig Buschmann, #10696
Email: [e-mail]; [e-mail]; [e-mail]
299 South Main Street, Suite 1800
Salt Lake City, UT 84111-2263
Telephone: [phone]; Facsimile: [phone]
Attorneys for Defendant GOOGLE INC.
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
ISYS TECHNOLOGIES, INC., a Nevada
Corporation,
Plaintiff,

Case No. 2:11-CV-507 CW

OBJECTIONS OF GOOGLE INC. TO
DECLARATION OF AARON ROWSELL

v.

GOOGLE INC., a Delaware Corporation;
SAMSUNG ELECTRONICS USA, INC., a
Delaware Corporation; ACER AMERICA CORP.,
a California Corporation; AMAZON.COM, INC.,
a Delaware Corporation; and BEST BUY CO.,
INC., a Minnesota Corporation,

Judge Clark Waddoups

Defendants.
Defendant Google Inc. hereby objects to several statements made in the Declaration Of
Aaron Rowsell In Support Of Isys’ Motion For Temporary Restraining Order And Preliminary
Injunction dated 6 June 2011 (hereinafter “Rowsell Declaration” or “Rowsell Decl.”). The
objections are set forth below following each of the several statements from the Rowsell

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Declaration. None of the statements is admissible under the Federal Rules of Evidence (“FRE”)
for the reasons stated.
STATEMENTS AND OBJECTIONS
All the following statements repeated from the Rowsell Declaration are in italics.
1.

In the Fall of 2009, ISYS began promoting its Modular Computer as an Xi3 product
including the brand name CHROMIUMPC. (Rowsell Decl. at ¶ 5)
OBJECTIONS
a.

Inadmissible Conclusion. This statement presents a conclusion without any

underlying facts. For example, it does not state how or where the product was promoted.
It does not identify or describe the audience for the purported promotions and does not
state that any audience was actually reached or how it reacted to the purported
promotions, if at all.
b.

No Foundation. This statement does not present the qualifications of the

declarant to present the statement nor does it present directly or indirectly the time frame
or the vehicle(s) used to promote. It therefore lacks a proper foundation.
c.

Best Evidence. The promoting of a mark would necessarily involve perceivable

communications from the promoter to the market. No such material was presented. The
statement therefore lacks original documents that should be presented under FRE 1002,
and the statement should be excluded because it is not the best evidence.

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2.

Since 2009, ISYS has continuously promoted its new computers under the
CHROMIUMPC brand at trade shows. (Rowsell Decl. at ¶ 6)
OBJECTIONS
a.

Inadmissible Conclusion. This statement presents a conclusion without any

underlying facts. For example, it does not identify any particular trade shows, nor does it
indentify how or where the computers were promoted, let alone the brand. It does not
identify or describe the audience for the purported promotions and does not state that any
audience was actually reached or how it reacted to the purported promotions, if at all.
b.

No Foundation. This statement does not present any information showing where,

when, how or to whom the purported promotions were made or set forth the declarant’s
basis for knowing about the purported promotions. It therefore lacks a proper foundation.
c.

Best Evidence. The promoting of a mark would necessarily involve perceivable

communications from the promoter to the market. No such material was presented. The
statement therefore lacks original documents that should be presented under FRE 1002,
and the statement should be excluded because it is not the best evidence.

3.

Since 2009, ISYS has continuously promoted its new computers under the
CHROMIUMPC brand in discussions with customers in different parts of the United
States. (Rowsell Decl. at ¶ 7)
OBJECTIONS
a.

Inadmissible Conclusion. This statement presents a conclusion without any

underlying facts. For example, it does not identify the purported customers, nor does it

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indentify how or where the computers were promoted. It does not state that the purported
promotions actually reached any purported customer or what the reaction, if any, to the
purported promotions was. It also makes a conclusory reference to “customers” with no
evidence whatsoever of any sales.
b.

No Foundation. This statement does not present any information establishing

where, when, how or to whom the purported promotions were made or set forth the
declarant’s basis for knowing about the purported promotions. It therefore lacks a proper
foundation.
c.

Best Evidence. The promoting of a mark would necessarily involve perceivable

communications from the promoter to the market. No such material was presented. The
statement therefore lacks original documents that should be presented under FRE 1002,
and the statement should be excluded because it is not the best evidence.

4.

Since 2009, ISYS has continuously promoted its new computers under the
CHROMIUMPC brand in electronic communications about its business including
marketing and sales emails to potential customers, Internet blogs, Twitter, Facebook, and
its own www.chromiumpc.com website, beginning in November 2009. (Rowsell Decl. at
¶ 8)
OBJECTIONS
a.

Inadmissible Conclusion. This statement presents a conclusion without any

underlying facts. For example, it does not identify the potential customers to whom the
communications were directed and does not attach examples of any communications or

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otherwise provide any details about the communications. It does not identify or describe
the audience for the purported promotions and does not state that any audience was
actually reached or how it reacted to the purported promotions, if at all.
b.

No Foundation. This statement does not present any information establishing

where, when, how and to whom the purported communications were made or set forth the
declarant’s basis for knowing about them. It therefore lacks a proper foundation.
c.

Best Evidence. This statement should be excluded as an improper introduction of

the contents of writings (the “electronic communications”) without providing the
communications themselves. The statement therefore lacks original documents that
should be presented under FRE 1002 and should be excluded because it is not the best
evidence.

5.

ISYS is senior user and the owner of the mark CHROMIUMPC for use in connection with
computer hardware. (Rowsell Decl. at ¶ 9)
OBJECTIONS
a.

Inadmissible Opinion/Hearsay. This statement includes an opinion asserting that

plaintiff is the “senior user” and “owner” of the mark CHROMIUMPC for use in
connection with computer hardware, both of which are conclusions inadmissible as
opinions of a lay witness under FRE 701. Alternatively, the statement is inadmissible
hearsay under FRE 802 as a conclusion of another that was communicated to Mr.
Rowsell by an unknown third party and is offered for the truth of the matter asserted.

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b.

No Foundation. This statement lacks a proper foundation because it does not

identify the other marks or users to whom ISYS claims to be “senior,” or otherwise
provide facts sufficient to establish priority of use or trademark ownership.
c.

Not Competent. The declarant provides no basis for his having sufficient

knowledge of trademark law to be able to present statements of this type.

6.

In November 2010, the Consumer Electronics Association, owner of the International
Consumer Electronics Show, announced that ISYS’ Xi3 Modular Computer was to be
recognized as a 2011 International CES Innovations Design and Engineering Award
winner in the computer hardware category. (Rowsell Decl. at ¶ 11)
OBJECTIONS
a.

Hearsay. To the extent the statement is offered to prove that ISYS’ Xi3 Modular

Computer was to be recognized as a 2011 International CES Innovations Design and
Engineering Award winner in the computer hardware category, it is inadmissible as
hearsay under FRE 802.
b.

No Foundation. To the extent the statement is offered to prove that the Consumer

Electronics Association made the asserted announcement, it lacks foundation as to the
declarant’s knowledge of any such announcement.
c.

Best Evidence. This statement should be excluded as an improper introduction of

the contents of writings (the announcement) without providing the announcement itself.
The statement therefore lacks original documents that should be presented under FRE
1002 and should be excluded because it is not the best evidence.

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d.

Irrelevant. This statement is not relevant under FRE 401 because any

announcement about the Xi3 Modular Computer is of no consequence to the
determination of the action. The statement does not refer to the CHROMIUMPC mark or
any issues of consequence to the determination of the action. It is therefore inadmissible
under FRE 402.

7.

Images of the approximately 4” x 3½” Xi3 Modular Computer include:

(Rowsell Decl. at ¶ 12)
OBJECTIONS
a.

No Foundation. This statement lacks any information as to when these products

were made, when the photograph was taken, or whether the products have ever been seen
by the public.

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8.

The Xi3 Modular Computer and other Xi3 Technology products thereafter received rave
reviews at the January 6-9, 2011 International Consumer Electronics Show in Las Vegas,
Nevada (“CES 2011”). (Rowsell Decl. at ¶ 13)
OBJECTIONS
a.

Hearsay. To the extent the statement is offered to prove that individuals or

entities favorably received the Xi3 Technology products at CES 2011, it is inadmissible
as hearsay under FRE 802.
b.

No Foundation. To the extent the statement is offered to prove that

communications were made to declarant regarding Xi3 Technology products at CES
2011, it lacks foundation as to the declarant’s knowledge of any such communications,
including who made them, when, and under what circumstances.
c.

Best Evidence. This statement should be excluded as an improper introduction of

the contents of writings (the “rave reviews”) without providing the reviews themselves.
The statement therefore lacks original documents that should be presented under FRE
1002 and should be excluded because it is not the best evidence.
d.

Irrelevant. This statement is not relevant under FRE 401 because the critical

reception to the Xi3 Modular Computer is of no consequence to the determination of the
action. The statement does not refer to the CHROMIUMPC mark or any issues of
consequence to the determination of the action. It is thus inadmissible under FRE 402.

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9.

A Business Wire New [sic] Release covering the CES 2011 show characterized the impact
of the Xi3 Technology as “Xi3 Corporation Rocks CES 2011.” (Rowsell Decl. at ¶ 14)
OBJECTIONS
a.

Hearsay. To the extent the statement is offered to prove the impact of Xi3

Technology at CES 2011, it is inadmissible as hearsay under FRE 802.
b.

No Foundation. To the extent the statement is offered to prove that the news

release was issued, it lacks foundation as to the declarant’s knowledge of the release,
including who authored and released it, when, and to what media outlets.
c.

Best Evidence. This statement should be excluded as an improper introduction of

the contents of writings (the news release) without providing the release itself. The
statement therefore lacks original documents that should be presented under FRE 1002
and should be excluded because it is not the best evidence.
d.

Irrelevant. This statement is not relevant under FRE 401 because the impact of

Xi3 Technology at CES 2011 of no consequence to the determination of the action. The
statement does not refer to the CHROMIUMPC mark or any facts of consequence to the
determination of the action. It is therefore inadmissible under FRE 402.

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10.

A version of the Xi3 Modular computer is being branded and promoted as the
CHROMIUMPC computer. (Rowsell Decl. at ¶ 15)
OBJECTIONS
No Foundation. This statement lacks a proper foundation because it does not identify or
describe what constitutes the purported “brand[ing] and promot[ion]” or what the basis of
declarant’s knowledge of the purported “brand[ing] and promot[ion]” is.

11.

One example of the Xi3 CHROMIUMPC computer is depicted as follows:

(Rowsell Decl. at ¶ 16)
OBJECTIONS
No Foundation. This statement lacks any information as to when this product was made,
when the photograph was taken, and whether the image represents a true and correct
photograph of an actual product bearing the CHROMIUMPC mark. The statement also
lacks a foundation as to what it means to “depict” an “example” of “the Xi3
CHROMIUMPC computer.”
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12.

In 2008, Google initiated an open-source software development project named
Chromium. (Rowsell Decl. at ¶ 18)
OBJECTIONS
a.

Not Competent. There is nothing to show that the declarant has any competence

to testify about Google’s CHROMIUM open-source development projects, and the
statement is therefore inadmissible under FRE 601.
b.

No Foundation. This statement lacks a proper foundation because it does not

provide the basis for the declarant’s purported knowledge about Google’s open-source
development projects.

13.

oogle [sic] invited independent third parties to participate. (Rowsell Decl. at ¶ 19)
a.

Not Competent. There is nothing to show that the declarant has any competence

to testify about the administration of Google’s CHROMIUM open-source development
projects, and the statement is therefore inadmissible under FRE 601.
b.

No Foundation. This statement lacks a proper foundation because it does not

provide the basis for the declarant’s purported knowledge about the administration of
Google’s open-source development projects.

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14.

This Chromium software initiative was for software development by third parties for an
internet operating system. (Rowsell Decl. at ¶ 20)
OBJECTIONS
a.

Not Competent. There is nothing to show that the declarant has any competence

to testify about Google’s CHROMIUM software initiative, and the statement is therefore
inadmissible under FRE 601.
b.

No Foundation. This statement lacks a proper foundation because it does not

provide the basis for the declarant’s purported knowledge about Google’s software
initiatives.

15.

In November 2009, ISYS began using CHROMIUMPC in connection with its modular
computers. (Rowsell Decl. at ¶ 21)
OBJECTIONS
a.

Improper Opinion. To the extent the term “using” is meant in the legal sense of

use as a trademark, this statement represents an improper opinion of a lay witness under
FRE 701.
b.

No Foundation. The statement lacks any foundation as to the basis for the

declarant’s knowledge as to ISYS’ purported “use” of “CHROMIUMPC,” or what such
“use” consisted of.

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16.

Representatives of Google and ISYS began communicating in the hopes of resolving the
matters. (Rowsell Decl. at ¶ 22)
OBJECTIONS
a.

No Foundation. The statement lacks any foundation as to the basis for the

declarant’s knowledge of the purported communications, what the “matters” consisted of,
or what the nature or substance of the communications was.
b.

Best Evidence. This statement should be excluded as an improper introduction of

the contents of writings (the communications) without providing the communications
themselves. The statement therefore lacks original documents that should be presented
under FRE 1002 and should be excluded because it is not the best evidence.

17.

During the second extension period, on May 11, 2011 Google announced a new
hardware product bearing the brand CHROMEBOOK. (Rowsell Decl. at ¶ 23)
OBJECTIONS
a.

Not Competent. There is nothing to show that the declarant has any competence

to testify about Google’s hardware announcements, and the statement is therefore
inadmissible under FRE 601.
b.

No Foundation. This statement lacks a proper foundation because it does not

provide a basis for what the “second extension period” refers to and does not provide the
basis for the declarant’s purported knowledge about Google’s announcement.
c.

Best Evidence. This statement should be excluded as an improper introduction of

the contents of writings (the announcement) without providing the announcement itself.

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The statement therefore lacks original documents that should be presented under FRE
1002 and should be excluded because it is not the best evidence.

18.

A [sic] term “PC” is a commonly used term for hardware products. (Rowsell Decl. at ¶
24)
OBJECTIONS
a.

Not Competent. There is nothing to show that the declarant has any particular

knowledge as to the meaning of the term “PC,” and the statement is therefore
inadmissible under FRE 601.
b.

No Foundation. The statement lacks any foundation as to the basis for the

declarant’s knowledge as to how the term “PC” is commonly used.
c.

Improper Opinion. This statement represents an improper opinion of a lay

witness under FRE 701.

19.

The term “book” is a commonly used term for hardware products. (Rowsell Decl. at ¶
25)
OBJECTIONS
a.

Not Competent. There is nothing to show that the declarant has any particular

knowledge as to the meaning of the term “book” in the context of hardware products, and
the statement is therefore inadmissible under FRE 601.

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b.

No Foundation. The statement lacks any foundation as to the basis for the

declarant’s knowledge as to how the term “book” is commonly used in the context of
hardware products.
c.

Improper Opinion. This statement represents an improper opinion of a lay

witness under FRE 701.

20.

The term “box” is a commonly used term for hardware products. (Rowsell Decl. at ¶ 26)
OBJECTIONS
a.

Not Competent. There is nothing to show that the declarant has any particular

knowledge as to the meaning of the term “box” in the context of hardware products, and
the statement is therefore inadmissible under FRE 601.
b.

No Foundation. The statement lacks any foundation as to the basis for declarant’s

knowledge as to how the term “box” is commonly used in the context of hardware
products.
c.

Improper Opinion. This statement represents an improper opinion of a lay

witness under FRE 701.

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21.

The terms “pc,” “book” and “box” equally connote hardware products for personal
computers in the computer industry. (Rowsell Decl. at ¶ 27)
OBJECTIONS
a.

Not Competent. There is nothing to show that the declarant has any particular

knowledge as to the connotation of the terms “pc,” “book,” or “box” in the context of the
computer industry, and the statement is therefore inadmissible under FRE 601.
b.

No Foundation. The statement lacks any foundation as to the basis for the

declarant’s knowledge of the connotation of the terms “pc,” “book,” or “box” in the
context of the computer industry or what it means for terms to “equally connote”
something.
c.

Improper Opinion. This statement represents an improper opinion of a lay

witness under FRE 701.

22.

On May 11, 2011, Google announced the public launch of upcoming sales of its
CHROMEBOOK PC product and hinted at also using CHROMEBOX for a desktop PC.
(Rowsell Decl. at ¶ 28)
OBJECTIONS
a.

Not Competent. There is nothing to show that the declarant has any competence

to testify about Google’s sales announcements, and the statement is therefore
inadmissible under FRE 601.
b.

No Foundation. This statement lacks a proper foundation because it does not

provide the basis for the declarant’s knowledge about the purported announcement. The

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statement also fails to provide a foundation for what “public launch of upcoming sales”
of a product means or what the nature of the purported announcement or purported
“hint[ing]” was.
c.

Best Evidence. This statement should be excluded as an improper introduction of

the contents of writings (the announcement) without providing the announcement itself.
The statement therefore lacks original documents that should be presented under FRE
1002 and should be excluded because it is not the best evidence.

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Since its May 11, 2011 announcement, a google [sic] search for the term
“CHROMEBOOK” has more than five million search results as opposed to the fivehundred thousand search results on the chromiumpc name over the last two years.
(Rowsell Decl. at ¶ 29)
OBJECTIONS
a.

No Foundation. This statement lacks a proper foundation because it does not set

forth the nature or methodology of the purported “google search for the term
‘CHROMEBOOK,’” including the date on which the purported search was performed,
who performed it, and what its parameters were. The statement also fails to set forth the
basis for the purported “five-hundred thousand search results on the chromiumpc name
over the last two years,” including the nature and methodology of any search that
purportedly yielded those results, the dates on which any such search was performed, the
person(s) who performed any such searches, and the parameters of any such searches.
The statement also fails to set forth the nature or substance of the “May 11, 2011

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announcement.” The statement also fails to provide the basis for the declarant’s
knowledge about the purported searches and search results.
b.

Best Evidence. This statement should be excluded as an improper introduction of

the contents of writings (the announcement and search results) without providing the
announcement or the search results themselves. The statement therefore lacks original
documents that should be presented under FRE 1002 and should be excluded because it is
not the best evidence.

24.

This disparity demonstrates Google’s ability to immediately saturate a market with
marketing buzz and overwhelm recognition of existing brands and trademarks. (Rowsell
Decl. at ¶ 29)
a.

Improper Opinion. This is opinion offered to prove a fact when it has not been

shown that the witness is an expert. Thus the statement is an inadmissible opinion of a
lay person under FRE 701.
b.

No Foundation. There is no foundation suggesting that Mr. Rowsell has any

expertise in conducting or interpreting consumer surveys for forensic use in trademark
litigation or otherwise providing a basis for Mr. Rowsell’s knowledge.

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25.

Google’s conduct has caused and is causing immediate and irreparable harm to Plaintiff
and unless enjoined will continue to cause Plaintiff immediate and irreparable harm.
(Rowsell Decl. at ¶ 30)
OBJECTIONS
Plaintiff's contention of immediate and irreparable harm is based solely on the allegation
that “permitting the June 15, 2011 sales to go forward will irreparably and irretrievably
extinguish Isys [sic] ability to survey the market status quo before CHROMEBOOK PC
products flood the market.” (Plaintiff’s MPA at p. 8)
a.

Improper Opinion. This is opinion offered to prove a fact when it has not been

shown that the witness is an expert. Thus the statement is an inadmissible opinion of a
lay person under FRE 701.
b.

No Foundation. There is no foundation suggesting that Mr. Rowsell has any

expertise in conducting forensic consumer surveys for use in trademark litigation or
otherwise providing a basis for Mr. Rowsell’s knowledge

Dated this 13th day of June, 2011.
/s/ Craig Buschmann
Robert Stolebarger
Craig Buschmann
HOLME ROBERTS & OWEN, LLP
299 South Main Street, Suite 1800
Salt Lake City, Utah 84101
Attorneys for Google Inc.

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CERTIFICATE OF SERVICE
I hereby certify that on the 13th day of June, 2011, I caused a true and correct copy of the
OBJECTIONS OF GOOGLE INC. TO DECLARATION OF AARON ROWSELL to be
served as follows:
Todd E. Zenger
Dax D. Anderson
Joshua S. Rupp
KIRTON & McCONKIE
1800 Eagle Gate Tower
60 East South Temple
Salt Lake City, UT 84111

_____ U.S. Mail, postage prepaid
_____ Hand Delivery
_____ Facsimile
_____ Overnight courier
X E-Mail and/or CM/ECF

By: /s/ Sherice L. Atterton

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