Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-00329-WYD-CBS

Document 346-6

Filed 05/04/2007

Page 1 of 4

Plaintiff's Response to Motion in Limine to Exclude Evidence Concerning Deaths of Alpacas



Exhibit 5

Case 1:04-cv-00329-WYD-CBS
00001 1

Document 346-6

Filed 05/04/2007

Page 2 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO 2 Civil Action No. 04-D-0329 (CBS) 3 CACHE LA POUDRE FEEDS, LLC, a Colorado limited liability 4 company, 5 6 v. 7 LAND O' LAKES, INC., a Minnesota corporation; LAND O' LAKES 8 FARMLAND FEED, LLC, a Minnesota limited liability company; 9 AMERICAN PRIDE CO-OP, a Colorado cooperative corporation; Plaintiff

10 POUDRE VALLEY COOPERATIVE ASSOCIATION, INC., a Colorado 11 cooperative corporation; FRANK BEZDICEK, individually, and 12 in his official capacity as Director of Marketing, Land O' 13 Lakes, Inc.; ROBERT DeGREGORIO, individually and in his 14 official capacity as President, Land O' Lakes Farmland Feed, 15 LLC; and As yet unidentified entities and individuals 16 participating in concert with the aforenamed defendants, 17 18 Defendants. Pursuant to Notice and the Federal Rules of Civil

19 Procedure, the deposition of WESTON ANSON, taken by 20 Plaintiff, was held at 8:50 a.m., on Tuesday, August 9, 21 2005, at 2904 Pacific Highway, San Diego, California, before 22 Jason T. Meadors, Registered Professional Reporter and 23 Notary Public for the State of Colorado. 24 25 DEPOSITION OF WESTON ANSON Taken August 9, 2005

Anson, Weston 08-09-05 FINAL depo

Page 1

Case 1:04-cv-00329-WYD-CBS
00192 1 harm that occurs, correct? 2 3 A Q Yes.

Document 346-6

Filed 05/04/2007

Page 3 of 4

How did the amount of corrective advertising

4 consider the nature of the harm that had occurred? 5 A Well, since virtually no harm at all had occurred

6 to CLP, other than a very minor sales decline for a bit over 7 a year, there's virtually no harm to CLP. 8 9 10 Q A Q You accept that there was a sales decline. Very minor, but yes. And you feel that that was a limited amount of

11 harm, due to the trademark infringement, right? 12 13 A Q Yes. The 25 percent rule applies in instances where

14 there was some deception in the advertising, correct? 15 16 A Q I'm sorry. My mind was wandering. The 25 percent rule applies in instances where

17 there was some deception in the advertising, correct? 18 19 20 A Q MR. TAMKIN: Object to the form of the question. Not in the Big O case, no. (By Mr. Santangelo) Okay. So in an instance

21 where there was trademark infringement, the 25 percent rule 22 is an appropriate application, correct? 23 24 A Q It is appropriate, yes. In an instance -- you remember the example

25 earlier, if Gold Kist sold chickens that killed 50 children?

Anson, Weston 08-09-05 FINAL depo

Page 192

Case 1:04-cv-00329-WYD-CBS

Document 346-6

Filed 05/04/2007

Page 4 of 4

00193 1 Something, that example that you used? That would be an 2 instance where perhaps some extraordinary efforts would be 3 needed to do corrective advertising. Correct? 4 A Yes. If CLP had been killing chickens before the

5 negotiation period, the value of the trademark would be much 6 lower. 7 Q Right. But importantly, there would need to be a

8 particularly assertive corrective advertising campaign to 9 fix an instance where feed was killing children. 10 11 A Q Yes. How did you determine -- how would you determine

12 the level of effort that would be necessary for an instance 13 like that, if selling feeds had caused a particularly 14 harmful instance? How would you determine how much 15 corrective advertising would be appropriate? 16 MR. TAMKIN: Object to the form. It's an

17 impossible answer. Hypothetical. 18 19 20 A A I -MR. TAMKIN: Do you have a specific instance? I don't know. I've never been asked to deal with

21 dead children. 22 Q (By Mr. Santangelo) So you wouldn't know how to

23 deal with that. 24 A Oh, I could probably find a solution to the

25 problem, but I can't answer your question right now.

Anson, Weston 08-09-05 FINAL depo

Page 193