Rosetta Stone LTD v. Google Inc.

Filing 107

Declaration re 103 MOTION for Partial Summary Judgment of Eric Eichmann by Rosetta Stone LTD. (Attachments: # 1 Exhibit 1 - 5)(Allen, Warren) Under Seal copy received and placed in box on shelf in Civil Vault. Modified on 3/29/2010 (tche). (Additional attachment(s) added on 4/1/2010: # 2 Main Document) (klau, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

ROSETTA STONE LTD.,

)

Plaintiff,

)

vs.

)

GOOGLE INC.,

Case No. 1:09-cv-00736 (GBL/TCB)

)

Defendant.

)

DECLARATION OF ERIC EICHMANN IN SUPPORT OF ROSETTA STONE LTD.'S
MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO LIABILITY

FILED IN PART UNDER SEAL

I, Eric Eichmann, declare and state as follows:

1.

I am the Chief Operating Officer of Rosetta Stone Inc. ("Rosetta Stone" or

the "Company"). I make this Declaration based on my own personal knowledge, and if called
upon to do so, I could and would testify competently thereto.
2.

marks

Rosetta Stone adopted and used, and has continued to use, the names and

ROSETTA

STONE,

ROSETTA

STONE

LANGUAGE

LEARNING

SUCCESS,

ROSETTASTONE.COM and ROSETTA WORLD (the "Rosetta Stone Marks") in connection
with its language-learning products and services.

3.

Rosetta Stone identifies itself, together with the products and services

which it offers, using the Rosetta Stone Marks in different advertising media, including
television and radio commercials, magazine advertisements, kiosks in public places, and the
Internet.

Attached hereto as Eichmann Exhibit 1 are true and correct copies of examples of

Rosetta Stone advertisements.
4.

The Rosetta Stone Marks appear prominently on each page of Rosetta

Stone's website.

Attached hereto as Eichmann Exhibit 2 are true and correct copies of (i) the

current landing page for www.rosettastone.com and (ii) examples of other pages of Rosetta
Stone's website.
5.

Rosetta Stone.

The Rosetta Stone Marks appear on the actual products ordered from

No other name or designation appears anywhere on or in connection with the

products or packaging for Rosetta Stone's products.

Rosetta Stone's bright yellow packaging,

moreover, is recognized by consumers as being distinctive of and associated with Rosetta

Stone's products.

The sales and shipping invoices accompanying Rosetta Stone's products

include the Rosetta Stone Marks. Attached hereto as Eichmann Exhibit 3 is a true and correct

copy of a picture of Rosetta Stone's current packaging as shown on Rosetta Stone's website.

7.

In addition to its own advertising efforts, Rosetta Stone has been the

subject of many articles in national publications and television programs such as The New York
Times, The Wall Street Journal, Tlie Washington Post, Fortune, USA Today, Conde Nast
Traveler, O Magazine, Today, and The Tonight Show. Attached hereto as Eichmann Exhibit 4
are true and correct copies of examples of such articles.

8.

The Rosetta Stone Marks have achieved high levels of actual recognition

among the public.

I declare under penalty of perjury under the laws of the United States of America
that the foregoing is true and correct.

Executed on March 25, 2010, at Arlington, Virginia.

CERTIFICATE OF SERVICE

1 hereby certify that on March 26, 2010, I will electronically file the foregoing
with the Clerk of Court using the CM/ECF system, which shall send notification of such filing
(NEF) to the following:

Jonathan D. Frieden
ODIN, FELDMAN & PETTLEMAN, P.C.
9302 Lee Highway, Suite 1100
Fairfax, VA 22031
Jonathan, [e-mail]

Counsel for Defendant. Google Inc.

Respectfully submitted,
March 26. 2010

Date

/$/

Warren T. Allen II (Va. Bar No. 72691)
Attorney for Rosetta Stone Ltd.

Skadden, Arps, Slate, Meagher & Flom LLP
1440 New York Avenue, N.W.
Washington, D.C. 20005-2111
Telephone: [phone]
Facsimile: [phone]

[e-mail]