Rosetta Stone LTD v. Google Inc.

Filing 222

TRANSCRIPT of Proceedings held on April 23, 2010, before Judge Gerald Bruce Lee. Court Reporter/Transcriber Renecia Wilson, Telephone number,703 501-1580. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/4/2010. Redacted Transcript Deadline set for 7/6/2010. Release of Transcript Restriction set for 8/3/2010.(wilson, renecia)

1
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
ROSETTA STONE, LTD,
Plaintiff,
VS.
GOOGLE, INC.,
Defendant.

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Civil No. 09-736
April 23, 2010

REPORTER'S TRANSCRIPT
MOTIONS HEARING

BEFORE:

THE HONORABLE GERALD BRUCE LEE
UNITED STATES DISTRICT JUDGE

APPEARANCES:
FOR THE PLAINTIFF:

FOR THE DEFENDANT:

SKADDEN ARPS SLATE MEAGHER & FLOM LLP
BY: WARREN ALLEN, ESQ.
MITCHELL ETTINGER, ESQ.
DAVID LELAND, ESQ.
JENNIFER SPAZIANO, ESQ.
ODIN FELDMAN & PITTLEMAN PC
BY: JONATHAN D. FRIEDEN, ESQ.
STEPHEN COBB, ESQ.
QUINN EMANUEL URQUHART OLIVER
BY: MARGRET CARUSO, ESQ.
JONATHAN OBLAK, ESQ.
ADAM BAREA, ESQ.
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OFFICIAL COURT REPORTER: RENECIA A. SMITH-WILSON,RMR,CRR
U.S. District Court
401 Courthouse Square, 5th Floor
Alexandria, VA 22314

RENECIA A. SMITH-WILSON, RMR, CRR

2

INDEX
ARGUMENT BY THE PLAINTIFF

4, 33

ARGUMENT BY THE DEFENDANT

25, 35

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RENECIA A. SMITH-WILSON, RMR, CRR

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1
2

(Thereupon, the following was heard in open
court at 12:39 p.m.)

3
4

THE CLERK:

LTD versus Google, Incorporated.

5
6

1:09 civil 736 Rosetta Stone,

Would counsel please note your appearances
for the record.

7

MR. ALLEN:

8

name is Warren Allen.

9

Good afternoon, Your Honor.

My

Rosetta Stone.

10

I'm here on behalf of plaintiff

With me are Mitchell Ettinger, David Leland

11

and Jennifer Spaziano from Skadden Aps.

12

THE COURT:

13

MR. FRIEDEN:

14

All right, good afternoon.
Good morning, Your Honor.

John Frieden, Oden Feldman & Pittleman for Google.

15

With me are Steven Cobb, Margret Caruso,

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Adam Barea who is the general counsel for Google and

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Jonathan Oblak.

18

THE COURT:

Good afternoon.

19

I realize that there are several motions

20

here, and I have read and I think that what I would like

21

to do is to take up the plaintiff's motion for partial

22

summary judgment and the defendant's motion for summary

23

judgment, take them up both first.

24

first?

25

MR. ETTINGER:

I can't tell who filed

They were filed

RENECIA A. SMITH-WILSON, RMR, CRR

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simultaneously.

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3

THE COURT:

They were filed simultaneously.

All right, then plaintiff goes first.

4

MR. ETTINGER:

5

Mitchell Ettinger on behalf of Rosetta

6

Thank you, Judge.

Stone, Your Honor.

7

As is my practice when I appear before you,

8

I have a handout instead of a demonstrative if I might

9

provide it.

10
11

THE COURT:

All right.

I'm open to

receiving it.

12

MR. ETTINGER:

Copies have been provided to

13

opposing counsel, Judge, and there's a copy here for your

14

clerk as well.

15

THE COURT:

Thank you.

16

We're taking up now Rosetta Stone's motion

17

for partial summary judgment as a liability; is that

18

right?

19

MR. ETTINGER:

That's correct, Your Honor.

20

Your Honor, relying on the undisputed facts that have been

21

established through the filings of the motions for summary

22

judgment and the legal precedent, in other cases involving

23

the very same practices of Google, Inc, Rosetta Stone has

24

established that summary judgment as to liability should

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be entered on its behalf.

RENECIA A. SMITH-WILSON, RMR, CRR

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And before I just walk through that analysis

2

to show you how the undisputed facts meet the elements of

3

trademark infringement if I might just spend five minutes

4

of the Court's time to introduce you to the lingo that

5

we've been living with in this case now for couple months.

6

It might help make it easier for the Court,

7

and I might confess that this may be all known to you, and

8

I'll go very quickly if it is.

9

lingo.

10

But for me it was all new

And so, if I could get you just to turn to

11

tab one of the handout, Your Honor.

12

search home page.

13

www.Google.com, this is what would come up on your

14

computer.

15

enter a search term, and here you'll see that the terms

16

"Rosetta Stone" are entered in order to conduct a search

17

on Google.

18

This is a Google

So if you were to type in

It basically is a page that allows a user to

The next page, Your Honor, is what is known

19

as search results pages.

20

THE COURT:

I don't want you to think that I

21

am computer illiterate.

22

and I actually own a copy of Rosetta Stone.

23
24
25

I do use Google.

MR. ETTINGER:

Excellent.

I use Yahoo,

I can't speak to

you in a foreign language today, but.
THE COURT:

¿Sí, habla Español?

RENECIA A. SMITH-WILSON, RMR, CRR

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1

MR. ETTINGER:

2

THE COURT:

3

MR. ETTINGER:

Nein.

Oh, okay.
Judge, if I can get you to

4

turn to the third page, I'll go very quickly and just

5

explain to you what I'm going to be talking about.

6

The key words that are highlighted in red,

7

those are the words that are sold at Google AdWords

8

auction.

9

when users like yourself or myself enter those key words,

They admittedly are bid on by companies so that

10

a sponsored link will come up.

11

is Google's version of a paid advertisement.

12

A sponsored link, Judge,

The sponsored links appear as you see on

13

this page on the top portion of the screen and in the kind

14

of a pale yellow box and all along the right-hand side.

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Those sponsored links are the basis for this lawsuit.

16

That is what we are focused on.

17

THE COURT:

So your view is that companies

18

like Google that sell space like a newspaper that sells --

19

the Washington Post sells full page ads may not use a

20

trademark term to determine where to place an

21

advertisement.

22

of the trademark holder, that violates the Lanham Act and

23

unfair competition; is that right?

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25

And if they do so without the permission

MR. ETTINGER:

No, Your Honor.

stated Google's position quite well.

You've

That is not Rosetta

RENECIA A. SMITH-WILSON, RMR, CRR

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Stone's position.

2

a newspaper.

3

Google is not like an advertiser, like

What Google does is Google offers trademark

4

terms both branded and unbranded for sale to third parties

5

so that their ads may be triggered when a user enters the

6

trademark term in its search engine.

7

THE COURT:

All right.

It's very different.
But your fundamental

8

premise is that in connection with auctions of the words

9

that that violates Rosetta Stone's trademark rights.

10

MR. ETTINGER:

It violates it when it

11

creates confusion as to the search results page.

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what the Lanham Act holds.

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THE COURT:

That's

Are we focused here on confusion

14

in general or confusion as to the source or origin of

15

goods and services?

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MR. ETTINGER:

The Lanham Act 1114 provides

17

for confusion.

Confusion can be as to source or

18

sponsorship.

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which we have in this case when we talk about pirates

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which I'll get to in a moment.

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sponsorship of the ads themselves and what is being

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offered on the Internet.

23

that effect to show that consumers are confused when they

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see the sponsored links come up with the Rosetta Stone

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trademark.

It can be source of sponsorship of the goods

It can also talk about

And we have survey evidence to

RENECIA A. SMITH-WILSON, RMR, CRR

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Not only -- Your Honor, not only is it

2

triggered by that, by the terms Rosetta Stone but the

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marks themselves appear in the ads, and that's what

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creates the confusion.

5

And that, Your Honor, is the 2009 policy

6

change at Google.

7

through that quickly because that's really what's at heart

8

here.

9

And I want to make sure I walk you

So the sponsored links, every time someone

10

clicks on one of these sponsored links, Google gets paid.

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They get paid.

12

Today if you went on and opened an AdWords

13

account, it would take you five to seven minutes.

14

you type in Rosetta Stone as your key word that you want

15

to advertise on, you would find that Google would get paid

16

somewhere between $1.50 and $3.30 every time someone

17

clicked on that sponsored link.

18

90 percent of their income which is $24 billion a year.

19

And if

That's how they make

The organic search results which is depicted

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on this page appears directly below the sponsored links.

21

That is not at issue in this case.

22
23

THE COURT:
mean?

24
25

What does organic search results

MR. ETTINGER:
nonpaid.

This is the results that are

They are generated by Google's algorithm which

RENECIA A. SMITH-WILSON, RMR, CRR

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is I understand a trade secreted process that they use to

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generate search results.

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So Google's business model is to generate

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search results in the organic section and above it to

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place paid advertisements that are also relevant to the

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search term or key word entered by the computer user.

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THE COURT:

8

MR. ETTINGER:

9

So what is a search engine?
A search engine is Google.

Google is -- is the company that owns the search engine.

10

THE COURT:

Well, I'm asking that because I

11

want your definition as a lawyer what a search engine is

12

in the context of the Internet.

13

understand what Yahoo and Google are, but I want to hear

14

what your determination of what the term search engine

15

means.

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MR. ETTINGER:

I just told you I

Search engine is a mechanism

17

through which information is sorted, gathered and

18

displayed in response to a key word trigger.

19

THE COURT:

So then the user has to be

20

motivated to search -- to go to one of these search

21

engines; that is right?

22

MR. ETTINGER:

23

THE COURT:

Your Honor, yes, that's true.

So then a person going to a

24

search engine would not necessarily be going there to buy

25

products or services.

They would be looking to identify

RENECIA A. SMITH-WILSON, RMR, CRR

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products and services; is that right?

2

MR. ETTINGER:

That's one possibility, Your

3

Honor.

The confusion witnesses in this case have

4

testified that they went there for the purpose of finding

5

product.

6

THE COURT:

I understand.

7

distinct from Google, isn't it?

8

Well, Amazon is

buy books and things; isn't that right?

9
10

MR. ETTINGER:

Amazon is where you go to

Amazon does sell products,

yes, sir.

11

THE COURT:

12

for terms like DNA or thing like that.

13

find books, products, right?

14

You don't go to Amazon to search

MR. ETTINGER:

You go there to

I think consumers in most

15

parts, yes, but I believe Amazon has it's one search

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engine that might be powered by Google.

17

Judge.

18

THE COURT:

All right.

I'm not certain,

But the point that

19

I'm trying to focus in on is if the object of going to a

20

search engine is to look for products, your view is that

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the search engine may not employ any terms that are

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trademark terms without the permission of the trademark

23

holder.

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25

Is that right?
MR. ETTINGER:

Your Honor, under the unjust

enrichment claim that is correct.

Under the trademark

RENECIA A. SMITH-WILSON, RMR, CRR

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claim we say you may not use trademark terms.

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sell them at auction to trigger third party ads where they

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are likely to create confusion.

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5
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9

THE COURT:

You may not

So if it was free there would be

no violation?
MR. ETTINGER:

No, sir, there would not be.

It would not be.
THE COURT:
business model here.

So your objection is to the

And the business model in your view

10

exploits your trademark terms for which the trademark

11

owner ought to be compensated.

12

MR. ETTINGER:

Ought to be compensated and

13

there should be no confusion as to consumer's choice.

14

when someone goes on the Internet and knows the trademark

15

Rosetta Stone and the goodwill established in that mark,

16

that it means language learning software and they type in

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those specific words instead of learn Spanish or learn a

18

foreign language, that they receive results on the search

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results pages that are not confusing to the consumer.

20

So

And Judge, the question you just asked if

21

you could flip to the -- skip the next page.

It's just

22

the landing page which is the page that you would go to if

23

you clicked on Rosetta Stone.com.

24

two types of searches that are identified on that page.

25

One is called branded search and one is called non-branded

You'll see there are

RENECIA A. SMITH-WILSON, RMR, CRR

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search.

2

Branded search are searches that are based

3

on trademark terms.

4

case.

5

That is what is at issue in this

Rosetta Stone is not claiming that

6

non-branded search which deal with generic terms violates

7

their rights as a trademark holder.

8
9

THE COURT:

So then in your view, if someone

typed "Xerox" into the Google box, then Xerox -- the

10

holder of the trademark Xerox ought to be compensated; is

11

that right?

12

MR. ETTINGER:

Under the unjust enrichment

13

theory if a user types in Xerox and Google displays

14

sponsored links, whether they relate to Xerox or not and

15

someone clicks on that link and pays Google, Google is

16

trading on the goodwill of Xerox's mark and earning money

17

on that mark and the trademark owner should be compensated

18

under unjust enrichment.

19

With respect to trademark law, Xerox would

20

have a cause of action if the sponsored links displayed --

21

the sponsored links displayed by Google create confusion

22

to the consumer.

23

and that's what this case is about.

That's what the trademark law provides,

24

And if Your Honor can --

25

THE COURT:

Confusion as it relates to

RENECIA A. SMITH-WILSON, RMR, CRR

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advertising?

2

MR. ETTINGER:

3

THE COURT:

4

MR. ETTINGER:

That's correct, Judge.

All right.
If I could take you to the

5

next page, I'm going to walk through quickly the Google

6

policies at issue and I'll get right into the meat of the

7

argument.

8
9

The Google's trademark policy has evolved
over time.

Between 2000 and 2004, it did not permit

10

trademarks to be used as key words or to be used in the

11

sponsored link ads text at all.

12

period, they honored the trademark owner's right.

13

And during that time

In 2004 -- in 2004 -- in March of 2004, they

14

conducted some experiments.

15

designed to determine whether or not there would be user

16

confusion if they used key words, trademark key words and

17

if they allowed trademarks to appear in ad texts.

18

And these experiments were

Those internal experiments, Judge, conducted

19

by Google determined that there be high likelihood, high

20

likelihood of confusion if the trademark appeared in ad

21

text.

22

They changed their policy in 2004 after

23

those experiments opened up the market to keywords

24

including trademark terms.

25

things significantly happened and these are all in the

And when they did that, two

RENECIA A. SMITH-WILSON, RMR, CRR

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undisputed facts.

2

There was -- they recognized there was a

3

significant potential for additional revenues which makes

4

sense because the branded terms are worth more than the

5

non-branded terms because they're well known and it's the

6

goodwill of those marks.

7

And secondly they told the public, the

8

people that bought Google stock that this may cause us

9

problems in the trademark world and we may be sued.

10

So as of 2004, that's one registration.

So

11

as of 2004, now anybody can bid on a trademark key term,

12

including Rosetta Stone.

13

They went five years like that, went through

14

several lawsuits which we'll talk about in just a moment

15

because there's finding of law on use and commerce with

16

respect to their AdWords programs including one in this

17

court.

18

They go to 2009 and they say we can make

19

literally up to a billion dollars more a year,

20

conservatively a hundred million, but up to a billion

21

dollars more if we just let people put those trademarks in

22

ad texts.

23

And they changed it.
In June of 2009, they went to a policy that

24

allows people to put trademarks in ad texts, non-trademark

25

owners as well as bid on them.

RENECIA A. SMITH-WILSON, RMR, CRR

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1

And Your Honor, within two months of that

2

change, the pirates and counterfeiters that began

3

appearing on the Google pages relating to my client's

4

trademark are overwhelming.

5

Between September of 2009 and February 28th

6

of 2010 during the pendency of this suit, 183 instances of

7

trademark infringement by pirates were noted to Google by

8

Rosetta Stone, 183 times, Judge.

9

Those are the ones that Rosetta Stone could

10

find.

11

today to talk about why we're entitled to summary judgment

12

as a matter of law with respect to the infringement by

13

Google.

14

And so that is why we're here today.

We're here

The Fourth Circuit teaches us in the PETA

15

case that there are four elements that the Court must find

16

in order to enter summary judgment.

17

THE COURT:

Well, you should assume that

18

I've read your brief, and I'm not going to invite you to

19

read it to me now.

20

MR. ETTINGER:

21

THE COURT:

I won't do that.

Help me with your theory here

22

about the confusion.

So, your view is that the confusion

23

focuses in on whether the person searching thinks that the

24

use of the trademark term confuses the consumer as to

25

who's conducting the advertisement, whether or not it's

RENECIA A. SMITH-WILSON, RMR, CRR

16
1

been sponsored by Rosetta Stone or some pirate?

2

MR. ETTINGER:

Yes, sir.

That is one form

3

of the confusion.

4

that if they assume based on the Rosetta Stone marks

5

appearing in the ad links, that the goods being offered

6

for sale are authorized or manufactured by Rosetta Stone.

7

And the other form of the confusion is

And, in fact, Your Honor, we have five

8

confusion witnesses, all of whom typed in the words

9

"Rosetta Stone" into the Google search engine, pressed

10

enter, saw links that said Rosetta Stone, buy it for $148,

11

$158 and I'll show you a couple of those in just a moment,

12

believing that they were buying software that had been

13

manufactured, endorsed and supported by Rosetta Stone.

14

THE COURT:

15

actual products, was it?

16

or not they were authorized or not that was selling them.

17

But Google wasn't selling the
It was these companies, whether

So your view is that this search engine is

18

responsible for the actual sales.

19

pirated then, it was the search engine's fault.

20

If the sales were

If they were directed to Amazon.com and they

21

got an authorized version of Rosetta Stone, then that was

22

also Google's fault and Google is liable for that.

23

that right?

24

MR. ETTINGER:

25

okay, because that's not what I'm saying.

Is

Judge, with a little twist,

RENECIA A. SMITH-WILSON, RMR, CRR

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1
2

THE COURT:

If you would focus in and tell

me what you are saying.

3

MR. ETTINGER:

Okay, and that's fair enough.

4

What we're saying is that Google's business practice of

5

selling trademarks to third parties that display them in

6

sponsored links that create confusion is in and of itself

7

trademark infringement, end of case.

8
9

You do not need to establish that it's
counterfeit.

You just need to show confusion.

And that's

10

why I was going to PETA.

11

right, one that the plaintiff has a mark that's federally

12

registered and protected.

13
14

THE COURT:

PETA says there's four elements,

Well, I think the focus here

really is likelihood of confusion; isn't it?

15

MR. ETTINGER:

16

THE COURT:

17

MR. ETTINGER:

18

THE COURT:

Yes.

Isn't that where we're going?
Yes.

Well, let's go there fast

19

because I'm not going to -- you know, I don't need three

20

hours of oral argument on this.

21

what you think your argument is.

22

MR. ETTINGER:

I want you to focus on

Okay.

The reason I was

23

saying that is because all of the elements other than

24

likelihood of confusion are in the undisputed facts, done.

25

THE COURT:

I understand.

But your theory

RENECIA A. SMITH-WILSON, RMR, CRR

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is that by having a search engine where a person is

2

looking for products, that the ultimate sale, if it's

3

counterfeit, is as a result of the exploitation of the

4

trademark term that was placed in the search engine.

5

So that means that if someone is looking for

6

a Sony television and they type in Google "Sony

7

televisions", so they can find out who sells Sony

8

televisions, and it turns out that one of the persons

9

selling Sony televisions is selling knockoffs, that the

10

search engine is liable.

11

That's very different than a case where

12

Amazon which may be selling Sony televisions is selling

13

out of their warehouse counterfeit televisions for which

14

they could perhaps be held liable for trademark

15

infringement.

16

Help me with how I distinguish those two

17

different business models because I'm having difficulty

18

understanding.

19

MR. ETTINGER:

Fair enough.

The difference

20

is that with Google, Google says to its clients, you may

21

bid on this trademark term and you may use it in ad text.

22

And if you turn to page five, I'll give you the perfect

23

example, tab five.

24
25

Its policy change in 2009 said that any one
who they believe sells products associated with Rosetta

RENECIA A. SMITH-WILSON, RMR, CRR

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1

Stone can put it in ad text.

So if you look under tab

2

five, the trademark infringement, our theory is very

3

simple, that upon the entry of Rosetta Stone and the

4

serving of this results page which this is a real results

5

page, Judge, the serving of this results page results in

6

confusion, and that is because you cannot tell from

7

looking at these links which of these particular companies

8

are offering legitimate authorized original Rosetta Stone

9

software.

You can't tell.

10

THE COURT:

11

to the public that that's what this is?

12
13

So is Google making a statement

MR. ETTINGER:

Google's trademark policy

says as follows --

14

THE COURT:

No, no.

My question was very

15

precise.

16

statement to the consumer that these links are to genuine

17

authorized products owned by Rosetta Stone?

18

Is the representation of this page by Google a

MR. ETTINGER:

Both direct and implied.

19

They do it directly, Judge, by saying this is our

20

trademark policy.

21

authorized resellers may display the trademark term and ad

22

text.

23

Only authorized resellers -- only

That is their public policy.
So, anyone who goes on the Internet is

24

comforted by knowing that only authorized resellers are

25

supposed to be here, number one.

RENECIA A. SMITH-WILSON, RMR, CRR

20
1

Number two is implied is that they, Google

2

touts, and this is why they make so much money, that they

3

give you the most relevant responses to your searches.

4

And if you're looking for Rosetta Stone,

5

here it is.

6

Stone", presses enter, I can't tell which of these links

7

are selling genuine.

8

page, this search page was shown to two senior trademark

9

counsel at Google during their depositions and they could

10

So now when a user goes in, types "Rosetta

And in fact, Your Honor, this very

not tell.

11

It turns out, Judge, that the second link --

12

THE COURT:

Well, they couldn't tell -- as I

13

understand it from reading the briefs, Rosetta Stone can't

14

tell unless it actually has a software to examine; is that

15

right?

16

MR. ETTINGER:

17

THE COURT:

That is not correct, Judge.

It's not.

So then you're able

18

to online just look at a version of Rosetta Stone to

19

determine if it's genuine or not?

20
21

MR. ETTINGER:
copyright infringement.

22
23

Judge, the question is not

THE COURT:
question.

No, I've asked you a specific

Can you answer my question?

24

MR. ETTINGER:

25

THE COURT:

Yes, sir.

Can Rosetta Stone go online and

RENECIA A. SMITH-WILSON, RMR, CRR

21
1

determine whether or not a copy being offered for sale of

2

Rosetta Stone software is authentic or not?

3

MR. ETTINGER:

They can tell you from

4

looking at the link whether it's an authorized reseller or

5

not.

6

THE COURT:

You did not answer my question.

7

If you think you've answered my question, it's okay.

My

8

question is very precise and that was whether Rosetta

9

Stone could go online, look at a version of software that

10

is on a disc and ascertain online whether or not it was

11

authentic?

Can you answer that question?

12

MR. ETTINGER:

13

THE COURT:

14

MR. ETTINGER:

All right, I'm listening.

15

again.

16

because they don't have it.

17

I think I can.

I think I have, but I'll try

They cannot do the physical examination, Judge,

THE COURT:

That's given.

I accept --

But Windows can actually do

18

these examinations online and tell you whether or not

19

you're using an authorized version of Windows.

20

saying Rosetta Stone does not have that capacity; is that

21

right?

22

MR. ETTINGER:

You're

No, Judge, because when you

23

get to this point on the search page, you don't get access

24

to the software.

25

THE COURT:

No, but you're saying that there

RENECIA A. SMITH-WILSON, RMR, CRR

22
1

were pirates out there selling your product.

2

that you have some way of know who is a pirate and who is

3

not, which means at some point, you either are able to

4

secure the product from the alleged pirate and examine it

5

or you have some way of doing it online.

6
7
8
9
10
11

And I assume

Am I inferring inaccurately about that
process?
MR. ETTINGER:
not downloadable products.

No, sir.

In fact, these are

They're sold in boxes.

And I

think that's our disconnect.
Once Rosetta Stone gets a copy of the

12

pirated product, of course, they can tell because they can

13

look at the code and see that it's counterfeit.

14
15
16

THE COURT:

So how would Google ascertain

whether or not the seller was selling authorized copies?
MR. ETTINGER:

Simple.

All they need to do

17

is ask the trademark owner whether or not they're selling

18

their mark to an authorized reseller.

19

THE COURT:

It's a simple task.

So then the only people can

20

resell Rosetta Stone are individuals -- companies

21

authorized by Rosetta Stone?

22

MR. ETTINGER:

23

That is Google's policy.

24

THE COURT:

That is their policy, Judge.

25

All right.

Now I'm asking you

what Rosetta Stone's policy is.

RENECIA A. SMITH-WILSON, RMR, CRR

23
1

MR. ETTINGER:

2

THE COURT:

3

Of course.

And my question is whether only

a Rosetta Stone authorized seller can sell their products?

4

MR. ETTINGER:

5

THE COURT:

6

MR. ETTINGER:

That is correct, Judge.

All right.
And so Google, its business

7

model and its policy is only authorized resellers are

8

allowed to bid on the marks, only authorized resellers use

9

the marks in the ad text.

10

And in practice it does not work, and if I

11

can get you to turn just for a moment to the -- and this

12

will bring it home, to tab three.

13

Tab three, Judge, is a synopsis of the 183

14

complaints that were made to Google between the time

15

period of September 2009 and February 2010.

16

Okay.

If you turn to the second page, it

17

shows you a Google search result that has a pirated

18

software in the top right-hand side.

19

If you turn to the next page, Judge, that is

20

the landing page, in other words the page that you go to

21

when you click on that link, for Language Tools Mall.com.

22

And you see the Rosetta Stone yellow box.

23

slashed price for the pricing and consumers are absolutely

24

confused as to whether or not that's genuine.

25

You see a

And there is no question that that makes

RENECIA A. SMITH-WILSON, RMR, CRR

24
1

sense because their own trademark counsel can't tell you.

2

If you go to the next page, Judge, it shows

3

you all of the dates in February where this ad appeared on

4

Google search pages, February 1, February 7, February 11

5

through 19, February 20th, 21st, 22nd, 23rd and 24th.

6

Every day that this occurs, Rosetta Stone

7

calls Google and says infringement is happening.

8

Infringement is happening.

9
10

THE COURT:

I just have one additional

question then I want to hear from the other side.

11

Is Rosetta Stone required to establish any

12

damages in connection with its trademark dilution claim?

13

And if so, how are you damaged?

14

MR. ETTINGER:

We do not need to establish

15

monetary damages under dilution.

We just need to show

16

that the mark could be tarnished.

And certainly, when

17

there is counterfeiters involved, tarnishment is presumed

18

by law.

19

mark.

20

generic or it's being hurt in some way because of the

21

association with the counterfeiters.

22

We do not have to diminution in value of the

We just need to show that it's either becoming

THE COURT:

So is the tarnishment taking

23

place by the pirate seller or is it taking place by the

24

advertisement on Google?

25

MR. ETTINGER:

Both, Your Honor, because the

RENECIA A. SMITH-WILSON, RMR, CRR

25
1

confusion created as to the association of these pirates

2

with Rosetta Stone.

3

THE COURT:

4

the questions I have.

5

Thank you.

I've asked you all

I'll give you a chance to respond.

Thank you.

6

MR. ETTINGER:

7

MS. CARUSO:

8

Good afternoon, Your Honor.

Just for the record, I'd like to clarify that --

9
10

Thank you, Judge.

THE COURT:

And tell me your name again,

please.

11

MS. CARUSO:

Margret Caruso.

12

THE COURT:

Yes, Ms. Caruso.

13

MS. CARUSO:

That Mr. Berea is senior

14

litigation counsel at Google.

15

counsel.

16

THE COURT:

17

MS. CARUSO:

However, he's not general

All right, thank you.
Your Honor, Rosetta Stone is

18

attempting to use trademark law to inhibit competition.

19

It's very clear what it wants.

20

with in your questions to Mr. Ettinger.

21

to stop any advertiser from displaying an advertisement

22

when content is shown on Google's search results page that

23

includes Rosetta Stone's name.

24
25

It's what you started out
It wants Google

It's remarkable because it is quite similar
to what happens in the non-Internet world.

RENECIA A. SMITH-WILSON, RMR, CRR

For example,

26
1

if a company wanted to contact the Washington Post and run

2

an advertisement that said we're selling great plasma

3

screen televisions and we want those to be featured next

4

to every story you run about the Super Bowl that's coming

5

up.

That's where we want them to appear.

6

And in telling that to the Washington Post,

7

they're of course saying I want this keyed to -- I want

8

you to use this with the licensed registered trademark of

9

the NFL, the Super Bowl, and that's where I want this to

10

shown up.

11

And of course when companies contact the

12

television stations that are broadcasting the Super Bowl,

13

they say I want my advertisement to appear during the

14

Super Bowl.

15

reach.

16

That's the group of people that I want to

And Rosetta Stone is saying on the Internet,

17

that's not okay.

The only advertising that can show up is

18

advertising that we say, Rosetta Stone says is okay.

19

doesn't matter if what the consumer enters is a search for

20

reviews of Rosetta Stone or best price for Rosetta Stone,

21

discounts for Rosetta Stone.

22

Consumer --

23

THE COURT:

It

Well, help me with the confusion

24

issue here because I think that we all need to focus on

25

what the confusion is.

RENECIA A. SMITH-WILSON, RMR, CRR

27
1

Is it sufficient to show that consumers are

2

confused about whether or not the product was endorsed by

3

Rosetta Stone or is the Court to focus on confusion as to

4

the source or origin of goods?

5

MS. CARUSO:

Your Honor, the Court should

6

here focus on confusion as to the source or origin of

7

goods.

8

THE COURT:

9

MS. CARUSO:

Or services.
Yes.

And I don't think that I

10

heard an argument from Rosetta Stone that there's

11

confusion as to whether Rosetta Stone is endorsing

12

Google's searches.

13

is that consumers will be confused as to the source of the

14

advertisements --

The confusion that they're asserting

15

THE COURT:

16

MS. CARUSO:

17

THE COURT:

Well, I think that --- and the product advertised.
I think that Rosetta Stone is

18

saying that the confusion in the consumer's mind is that

19

they will think that they're being linked to authorized

20

versions of Rosetta Stone when they're not, and that is a

21

source of confusion about the advertisement of the sources

22

of goods.

23

MS. CARUSO:

Right, a couple of things

24

there.

First, Google's 2009 policy, even though the case

25

starts in 2004 and they have damages they're asserting for

RENECIA A. SMITH-WILSON, RMR, CRR

28
1

that whole 2004 to mid 2009 period, the 2009 policy allows

2

the resellers of a product to use the trademark in the

3

text of their ad to identify what they're selling.

4

I want to clarify that it's not just

5

authorized resellers, not just who Rosetta Stone says we

6

approve this person, but it's any person who is selling a

7

genuine good.

8
9

And so, for example, Amazon is an authorized
reseller of Rosetta Stone, but there could quite possibly

10

be resellers of Rosetta Stone products, for example,

11

purchased Rosetta Stone off of Amazon and are reselling it

12

themselves or perhaps someone received it as a gift and

13

have decided that they don't want to learn that language

14

and they're going to resell the product that they

15

purchased.

16

So, even though that person isn't an

17

authorized reseller that would be consistent with Google's

18

policy for that genuine copy to be advertised.

19

The -- as to the ads they claim are for

20

counterfeit products, it's very important in this case to

21

understand the scope of what we're talking about here.

22

And Rosetta Stone has identified 183 complaints they've

23

made over the course of 179 days.

24

contrast to the 284,000 complaints that Tiffany made to

25

eBay in the case recently affirmed by the Second Circuit

This is in marked

RENECIA A. SMITH-WILSON, RMR, CRR

29
1

in which no liability was found.

2

And Rosetta Stone does not argue that that

3

case was wrongly decided.

They don't argue what the

4

Second Circuit's reasonings was for.

5

factually distinguishable.

6

is because eBay didn't know the identity of the

7

counterfeiters.

8

their reply brief and their opposition to summary judgment

9

motion, they quote a sentence from the Tiffany decision in

They say it's

And the reason they say that

And they cite in footnote eleven of both

10

which the Court says that the demand letters, the cease

11

and desist letters Tiffany sent didn't identify particular

12

sellers.

13

The Court in the next sentence, however,

14

immediately goes on to say that in Tiffany's notices of

15

claimed infringement of which there were more than

16

284,000, the counterfeit listings were identified.

17

So here we're talking about a much more

18

narrow scope.

And unlike eBay, Google is not the venue

19

for the sales.

It's a step further even removed from

20

that.

21

THE COURT:

Well, that's something that I'm

22

focused on and maybe it's time for you to tell me how I

23

should distinguish between a search engine which does not

24

sell products and one that does.

25

eBay, but you could use Amazon as well.

You just referred to

RENECIA A. SMITH-WILSON, RMR, CRR

30
1

Is a search engine required to obtain a

2

trademark owner's permission to sell those terms to those

3

who might want to bid for placement on a search page?

4

MS. CARUSO:

5

THE COURT:

6

MS. CARUSO:

Absolutely not, Your Honor.
Why not?
There is -- they only would be

7

if there was confusion that resulted.

If for some reason

8

consumers looked at all of those search result pages

9

and -- search results, sponsored links and thought that

10

they all were Rosetta Stone websites or they all were

11

offering Rosetta Stone products when they all weren't

12

offering Rosetta Stone products.

13

Google doesn't actually ever hold on to

14

those products.

15

its best to enforce them.

16

Google has actual knowledge or a reason to suspect a

17

particular counterfeiter is infringing, it does not have

18

any obligation under any case that Rosetta Stone has cited

19

to take down that ad.

20

that, and --

21

It has its policies in place.

It does

But up and to the point where

And that is Hard Rock Cafe cites

THE COURT:

But Google helps these

22

advertisers design their ad, don't they?

I mean, they

23

can't just put anything on a Google page.

24

a certain way.

25

policies and doesn't Google suggest how the sponsored

It has to look

It has to confirm to Google's certain

RENECIA A. SMITH-WILSON, RMR, CRR

31
1

links ought to present themselves?

2

it some to make Google a contributing force in the alleged

3

trademark infringement?

4

MS. CARUSO:

So doesn't that change

Your Honor, it doesn't.

To the

5

extent that Google is involved with the overall appearance

6

of ads at all, for example, and the fact that they have a

7

title line, the fact that they have a URL link, the fact

8

that they make suggestions generally to everyone saying

9

it's a good idea to end with a call to action or if you

10

have a discount to say so and don't use misspellings,

11

things like that, that is a mere link in the chain along

12

the lines.

13

To impose contributory or vicarious

14

infringement basically Google needs to be in cahoots with

15

these guys.

16

in which that level of liability is imposed and it's, you

17

know, you got the Bauer Lamp case where the defendant was

18

held to be liable for getting the manufacturer to make a

19

lamp after he said to the plaintiff there is a personal

20

vendetta between them and that I'm going to ruin your

21

business.

22

sell it for cheaper price, and I'm going to put you out of

23

business.

24
25

They have to -- if you look at all the cases

I'm going to copy your lamp and I'm going to

There is no evidence in the record remotely
close to that here.

RENECIA A. SMITH-WILSON, RMR, CRR

32
1

THE COURT:

All right.

I have one

2

additional question and that is with respect to the

3

dilution claim, trademark dilution claim, is the plaintiff

4

required to sustain damages, that is to say diminution in

5

revenue or value in order to state a claim?

6

MS. CARUSO:

Your Honor, the antidilution

7

act does not require that they prove that they have.

8

have to prove that they are -- that the accused action is

9

likely to tarnish or dilute their trademark brand.

10

They

And we submit here it is not likely to do

11

that when this use has been going on for the past six

12

years and their brand awareness has gone through the roof.

13

Their brand equity has gone nothing but up.

14

say it's likely to be harmed when it's just gone up and up

15

and up.

16

They can't

And even these confusion witnesses they talk

17

about who purchased the counterfeit products, they don't

18

even have a negative opinion of Rosetta Stone.

19

It's not a case where a fake Gucci handbag

20

or Prada bag, someone sees a shoddy work of craftsmanship

21

and thinks less of that trademark owner because of that.

22
23

THE COURT:
questions I have.

All right.

I've asked you the

Thank you very much.

24

MS. CARUSO:

25

THE COURT:

Thank you, Your Honor.
Brief reply.

RENECIA A. SMITH-WILSON, RMR, CRR

33
1

MR. ETTINGER:

Just a brief one, Judge.

2

You asked the question of counsel whether or

3

not Google's involvement in the ad process.

The answer is

4

very much so.

5

they call this the query suggestion tool internally.

6

Externally it's called the search engine -- search inquiry

7

tool.

8

don't want to have trademark law cases brought because

9

they're suggesting trademarks to their customers.

They have a tool called Quest, okay.

And

They don't use the word suggestion because they

10

This tool is designed to assist the person

11

who wants to advertise on Google to enter into a search

12

engine the name of the company that it wants to see its

13

key words.

14

Rosetta Stone software, pirated or otherwise, they can

15

type into the little tool, www.RosettaStone.com and see

16

all of the suggested search terms that they should use in

17

order to trigger their ads.

In other words, if someone wants to sell

18

Secondly they have what they call the key

19

word insertion tool.

20

you tell them what your key word is, Rosetta Stone,

21

automatically it populates it for you in your domain.

22

tells you that's the best way, that's the best way to sell

23

your product.

24
25

When you open an AdWords account and

It

This case is about a company that makes a
lot of money on these trademarks and all that -- a lot of

RENECIA A. SMITH-WILSON, RMR, CRR

34
1

money on these trademarks.

2
3

THE COURT:
money.

I'm not focused on the amount of

I'm focused on whether or not it violates the law.

4

MR. ETTINGER:

Right, and that's exactly

5

where I'm going, Judge.

6

is it could only happen 189 times in six months.

7

so many ads.

8

us responsible for this.

9

What you heard from Google today

We're selling so many ads.

We have

You can't hold

That's their business model.

Their policy states that they won't sell to

10

people that are not selling authentic goods.

11

routinely and put the burden on the trademark owners to

12

police their business that are making all this money.

13

that's what the trademark law does not permit.

14

They do it

And

That confusion is a direct infringement and

15

the analysis stops as soon as that ad posts, as soon as

16

you see that sponsored links and you press enter at

17

Rosetta Stone and you see those links and the confusion

18

exists then and there and that's what needs to be

19

enjoined.

20

The scope of the -- the scope of any such

21

remedy will be determined by the fairness of the actions.

22

But what needs to be enjoined is them selling the marks to

23

anybody and everybody for money.

24

and that's what this case is all about.

25

THE COURT:

That's what has to stop

Thank you very much.

RENECIA A. SMITH-WILSON, RMR, CRR

35
1

Ms. Caruso, do you want to take up Google's

2

motion for summary judgment?

3

about it.

4
5

I think we've covered some of it already.
MS. CARUSO:

Yes, Your Honor.

I'm happy to

address your questions.

6
7

I only have a few questions

THE COURT:

Your keyword "bidding process"

does involve the use of trademark terms, right?

8

MS. CARUSO:

9

THE COURT:

Yes, Your Honor, it does.
So you are selling those words

10

in order to decide where ads are placed on a Google search

11

page; is that right?

12

MS. CARUSO:

13

used to determine where ads are placed.

14

words are not themselves sold.

15

Not exactly.

Those words are
They -- but, the

Google makes money when ads are clicked

16

through.

So it's the space and then the effectiveness of

17

the ad that determines when Google makes money.

18

So, what Google is selling is the

19

advertising space.

20

there is triggered by them telling Google when you do your

21

search engine function and you do the commercial side of

22

it, we would like to appear there.

23

But the way the companies wind up

So, as Your Honor noted at the outset, the

24

search engine function returns relevant results.

25

Mr. Ettinger distinguished between organic results and the

RENECIA A. SMITH-WILSON, RMR, CRR

And

36
1
2

sponsored links.
And the organic results is almost like if

3

you were to go into a building and ask for Tylenol.

4

you are told in response would depend on if you went into

5

a drugstore or a library.

6

set of information you're looking for just because you

7

asked, you know, that question.

8
9

What

And Google doesn't know which

But it will return how it identifies things
in the organic results but then recognizes that there is a

10

separate market on those for commercial responses.

11

identifies the organic results by looking for those

12

trademarks through its algorithmic process and on the

13

commercial side it identifies those links, those

14

advertisements through identification in the keyword tool.

15

THE COURT:

And it

So in the old world it might be

16

like having a dictionary to search for words and then

17

having a separate document called a Yellow Pages that is

18

filled with commercial advertisement for which people pay

19

a fee in order to be in that book.

20

MS. CARUSO:

21

THE COURT:

22

the Yellow Pages online.

23

MS. CARUSO:

24

THE COURT:

25

Yes, Your Honor.
So in many ways, Google is like

That's correct.
The only reason you're looking

in the Yellow Pages is because you're looking as a

RENECIA A. SMITH-WILSON, RMR, CRR

37
1

consumer for services; is that right?

2

MS. CARUSO:

That's right.

3

THE COURT:

4

Google would be to search for services?

5

MS. CARUSO:

6

THE COURT:

And so the only reason to go to

Yes.
Now, would someone think that

7

the Yellow Pages themselves were the vendor of services or

8

goods?

9

MS. CARUSO:

10

Your Honor.

11

I certainly don't think so,

that.

12

Nothing in the record here would support

THE COURT:

All right.

I don't think I need

13

you all to argue all these things in your briefs.

14

read your briefs.

15

Thank you.

Hopefully, you believe that.

16

MR. ETTINGER:

18

THE COURT:

Okay.

Mr. Ettinger.

17

I have

19

May I, Your Honor?

I want you to take up the

question I just asked Ms. Caruso.

20

MR. ETTINGER:

21

THE COURT:

Very well.

A dictionary and a Yellow Pages,

22

one is searching for something.

23

in effect a dictionary and Yellow Pages online?

24
25

MR. ETTINGER:

Is that right?

Is Google

Your Honor, if you want to

characterize it that way, that's fine, but let's take the

RENECIA A. SMITH-WILSON, RMR, CRR

38
1

analogy all the way out.

2

If you look up Rosetta Stone in a Yellow

3

Page, do you expect to see competitors of Rosetta Stone

4

there?

5

Rosetta Stone software?

6

don't have any right to use the mark under Rosetta Stone?

7

That is the huge difference.

8
9

Do you expect to see unauthorized users of the

THE COURT:

Do you expect to see people that

It's like going --

Well, that is a -- that is a

difference I will grant you.

But the way the page is

10

displayed as you showed it to me, there's something called

11

a sponsored link --

12

MR. ETTINGER:

13

THE COURT: -- which suggests that the person

14

viewing the page should know that this is an ad being paid

15

for by someone who has paid Google money to display their

16

ad adjacent to a dictionary-type search result.

17

right?

18

MR. ETTINGER:

Right.

Is that

The answer to that is

19

twofold, Judge.

20

know that sponsored links means ads.

21

documents which we have in the papers before say there's

22

great confusion between the organic search and the paid

23

search.

24

didn't know what sponsored links meant.

25

One is you would hope that most people
But Google's own

And the confusion witnesses to a T testified I

One person thought that sponsored link,

RENECIA A. SMITH-WILSON, RMR, CRR

39
1

instead of calling it an advertisement, thought it meant

2

it was sponsored by Google, actually testified.

3

an MBA from Stanford.

4

very clear.

5

This is not a silly lady.

THE COURT:

She's got
It's not

Five people out of the thousands

6

who I assume use Google every day to click on it and

7

perhaps look for your company's ads.

8
9
10

Is there a way -- how much money does
Rosetta Stone pay Google for these ads that you pay for
that you've described in your complaint?

11

MR. ETTINGER:

I think the number of over

12

the course of years is about $3 million for the five-year

13

period.

14
15

THE COURT:

that five-year period for Rosetta Stone?

16
17

MR. ETTINGER:

THE COURT:
effective?

20
21

So the advertising has been very

Is that what you're telling me?
MR. ETTINGER:

The Internet has been very

effective, of course, but that's not its source.

22
23

Has the revenue, of course,

Your Honor.

18
19

Has the revenue increased during

THE COURT:
one second.

I know that you -- just give me

I can't talk as fast as you can.

24

MR. ETTINGER:

25

THE COURT:

I apologize.

The question, though, is one of

RENECIA A. SMITH-WILSON, RMR, CRR

40
1

whether Rosetta Stone contends that the money you've spent

2

on advertising here was not beneficial where you in a

3

sponsored ad used your trademark term which appeared at

4

the top of the page you just showed me on -- I think of

5

page two of tab one where you showed me your Rosetta Stone

6

trademark.

7
8
9

So I assume that first sponsored ad at the
top of that page is yours.

Is that right?

MR. ETTINGER:

Yes, sir.

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THE COURT:

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money to place it there.

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want it to pop up at the same time your term was entered

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by the search; isn't that right?

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So you wouldn't be wasting your
You put it there because you

MR. ETTINGER:

Your Honor, yes.

And think

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of the temerity of the argument that the trademark owner

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has to pay to have its own name come when and bid against

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people who are not authorized to use the term and pay more

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for that ad to come up because they're selling it to

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unauthorized people.

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More people --

THE COURT:

Is it uncommon for an advertiser

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in radio to pay more for an advertisement during drive

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time than to pay for a midday advertising?

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MR. ETTINGER:

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THE COURT:

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I would hope so.

All right.

Well, is there any

real difference here then in terms of the marketplace

RENECIA A. SMITH-WILSON, RMR, CRR

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governing the placement of their ad?

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MR. ETTINGER:

Your Honor, they're selling a

mark that they have no rights to.

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THE COURT:

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and I agree with you.

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To --

They're selling words that --

to your mark.

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8

They're selling words that relate

MR. ETTINGER:
our mark.

It's the mark.

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THE COURT:

Your Honor, they're selling

It's -Well, I have difficulty with

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that argument.

I understand why you say it, and I've read

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your brief and I understand that.

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selling -- they're selling placement on a page according

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to you through their bidding process that involves

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exploitation of your mark; is that right?

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MR. ETTINGER:

But they're not

No, sir.

They're selling the

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right to use -- to have this ad pop up when the mark is

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entered.

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They don't price it by the ad space.

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value of that term.

And in fact, Judge, they price it by the term.

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THE COURT:

They price it by the

I understand.

That's the

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marketplace.

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that fundamentally we'll have to decide as a matter of law

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whether or not they can do that or not.

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I don't have any problem with that.

I think

And so as I understand your argument,
though, that means that someone like a used car dealer who

RENECIA A. SMITH-WILSON, RMR, CRR

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is selling Fords without the permission from Ford before

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they could advertise that they were selling Ford Fusions

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at their used car dealership.

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permission from Ford to advertise that in a television ad,

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then that used car company would be violating Ford's

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trademark rights; is that right?

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MR. ETTINGER:

And in the absence of

No, Judge.

They'd only be

8

violating the trademark rights if they caused confusion.

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And I bring you back to that because that's what 1114

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requires.

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THE COURT:

Well, I've asked you about

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confusion and you're focused on five people who are

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confused about a sponsored links when I assume given that

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you spent $23 million on these ads with Google --

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MR. ETTINGER:

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THE COURT:

$3 million.

$3 million.

And we're not

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talking about five people on the Internet when there are

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millions of users.

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So I know that that's not the substance of

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your argument because that is a very weak argument.

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You

know that and I know that.

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What I'm focused on is confusion as a source

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or origin of goods where the search engine itself does not

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sell products.

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links to pirated goods, that violates the law.

And your view is that because there may be

RENECIA A. SMITH-WILSON, RMR, CRR

43
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I think I understand your theory.

And I

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don't know the answer to it, and I guess I'm going to have

3

to decide this sooner or latter.

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MR. ETTINGER:

May I make one comment about

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the five confusion witnesses?

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talk about them.

7

I can't -- I don't want to

I just want to talk generally.

In this circuit, in this court, we get five

8

nonparty depositions, five.

9

more, I'll bring you ten more.

10

If you want to give me ten
If you want to give me 20

more, I'll bring you 20 more, Your Honor.

11

The point is --

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THE COURT:

Well, you know, we're well

13

passed that stage now.

14

I know you have an issue involving the survey.

15

And I appreciate your argument and

Let me tell you all I don't need to have an

16

argument about the expert witness and Dr. Van Liere's

17

report.

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ruling on that.

I've read that and I'm going to give you all a

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I don't need to have argument on that.

I think that I've asked you all the

20

questions that I have concerning the matters that have

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been briefed.

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to have you all reiterate every single thing that you said

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in every single brief.

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25

And as I said at the outset, I did not plan

MR. ETTINGER:

Your Honor, it's always a

pleasure to appear before you.

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44
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THE COURT:

Thank you very much.

appreciate your patience.

3

We're now in recess.

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MR. ETTINGER:

5

I

Thank you.

Are we to stay here, Judge,

for your decision or are you going to --

6

THE COURT:

I'm good, but I'm not that good.

7

No, I'm not going to do that from the bench.

8

too much.

9

what I'm doing and why, so I'm going to write an opinion.

10
11

This is way

And whatever I do, I want you all to understand

But I'll give you a ruling soon because I
know we have a trial date on May 3rd.

12

MR. ETTINGER:

We want to know whether to go

13

to work all weekend or not, but I assume we'll just go to

14

work.

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THE COURT:

I think that it's safe to

continue trial preparation.

Thank you.

(Proceeding concluded at 1:30 p.m.)

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RENECIA A. SMITH-WILSON, RMR, CRR

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CERTIFICATE OF REPORTER

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I, Renecia Wilson, an official court reporter

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for the United State District Court of Virginia,

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Alexandria Division, do hereby certify that I reported by

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machine shorthand, in my official capacity, the

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proceedings had upon the motions in the case of Rosetta

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Stone vs. Google.

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I further certify that I was authorized and

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did report by stenotype the proceedings and evidence in

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said motions, and that the foregoing pages, numbered 1 to

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44, inclusive, constitute the official transcript of said

14

proceedings as taken from my shorthand notes.

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IN WITNESS WHEREOF, I have hereto subscribed
my name this

5th day of May , 2010.

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/s/
Renecia Wilson, RMR, CRR
Official Court Reporter

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RENECIA A. SMITH-WILSON, RMR, CRR