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.
---
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
3
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,
16
Adam Barea who is the general counsel for Google and
17
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.
2
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
25
be entered on its behalf.
RENECIA A. SMITH-WILSON, RMR, CRR
5
1
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.
15
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?
24
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.
12
what the Lanham Act holds.
13
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?
16
MR. ETTINGER:
The Lanham Act 1114 provides
17
for confusion.
Confusion can be as to source or
18
sponsorship.
19
which we have in this case when we talk about pirates
20
which I'll get to in a moment.
21
sponsorship of the ads themselves and what is being
22
offered on the Internet.
23
that effect to show that consumers are confused when they
24
see the sponsored links come up with the Rosetta Stone
25
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
3
marks themselves appear in the ads, and that's what
4
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.
11
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
20
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.
3
So Google's business model is to generate
4
search results in the organic section and above it to
5
place paid advertisements that are also relevant to the
6
search term or key word entered by the computer user.
7
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.
16
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
16
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
21
the search engine may not employ any terms that are
22
trademark terms without the permission of the trademark
23
holder.
24
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.
2
sell them at auction to trigger third party ads where they
3
are likely to create confusion.
4
5
6
7
8
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
17
those specific words instead of learn Spanish or learn a
18
foreign language, that they receive results on the search
19
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
15
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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1
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
19
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
41
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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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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
12
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
17
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
1
I think I understand your theory.
And I
2
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 --
12
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.
18
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
21
been briefed.
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to have you all reiterate every single thing that you said
23
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.
RENECIA A. SMITH-WILSON, RMR, CRR
44
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THE COURT:
Thank you very much.
appreciate your patience.
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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
45
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CERTIFICATE OF REPORTER
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4
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
7
machine shorthand, in my official capacity, the
8
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
12
said motions, and that the foregoing pages, numbered 1 to
13
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
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