Free Declaration in Support - District Court of California - California

Case 3:08-cv-03514-JSW

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DALE M. CENDALI (admitted for all purposes
11/30/93)

DIANA M. TORRES (SBN 162284) O'MELVENY & MYERS LLP 400 South Hope Street Los Angeles, CA 90071-2899 Telephone: (213) 430-6000 Facsimile: (213) 430-6407 [email protected] Attorneys for Plaintiffs The United States Olympic Committee and the International Olympic Committee UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORIA SAN FRANCISCO DIVISION

The United States Olympic Committee and The International Olympic Committee, Plaintiffs, v. Xclusive Leisure & Hospitality Ltd.; Beijingticketing.com; 20080lympics.com; Beijingolympic2008tickets.com; Beijingolympictickets2008.com; Olympic-tickets.net; Olympicticketsbeijing2008.com; Does 1-10, inclusive, Defendants.

Case No. C 08-03514 JSW DECLARATION OF DIANA M. TORRES IN SUPPORT OF PLAINTIFFS' MOTION FOR A TEMPORARY RESTRAINING ORDER

TORRES DEC. IN SUPPORT OF PLAINTIFFS' MOTION

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I, Diana M. Torres, hereby declare as follows:

1.

I am counsel of record for plaintiffs the United States Olympic

Committee and the International Olympic Committee. I submit this declaration to provide the Court with exhibits relevant to the questions posed in the Court's July 30, 2008, Order. All of the facts set forth herein are known to me personally and, if called as a witness, I could competently testify to them. 2. I have personally visited the website www.BeijingTicketing.com (the

"Site"). Every page of that site displays the following logo:

3.

The privacy page of the Site, available at

http://www.beijingticketing.com/Privacy.aspx, begins with the following sentence: Welcome to the Official Ticketing Website of the Beijing 2008 Olympic Games (BEIJING TICKETING WEBSITE or the "Website"). The Privacy page also has the following Copyright and Trademark notices: Copyright Notice: The Beijing Organizing Committee for the Games of the XXIX Olympiad (BOCOG) owns the intellectual property rights to all content on the Website as well as the Website's design, structure, and compilation ("Look and Feel"). Unless otherwise stated, Copyright Law of the People's Republic of China and other laws and regulations protect all materials contained in this Website. The content in this Website is for the purpose of personal use; it may not be reproduced, distributed, transmitted, displayed, published or broadcast for any other purpose without prior written permission of BOCOG. -2TORRES DEC. IN SUPPORT OF PLAINTIFFS' MOTION

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Logo and Trademarks: The Olympic Emblem, Trademarks and Technical Terms are registered internationally and are protected under existing laws and regulations. According to existing laws and regulations, it is illegal to use any of the trademarks or service marks or other intellectual property accessible through the Website for any other purposes unless such trademarks or service marks or other intellectual property are provided by BOCOG and are allowed to be used for any other purposes. It is illegal to misrepresent yourself in any way sponsored by, affiliated with, or endorsed by BOCOG or any of BOCOG's Sponsors. It is illegal to defame or disparage BEIJING TICKETING WEBSITE, the trademarks or service marks of BOCOG, or any aspect of the Website. 4. There is a portion of the homepage of the Site titled "Facts About

Summer Olympic 2008." Under that title are statements preceded by bullet points. In those statements are three links. The first link is the words "Olympics 2008" in the first bullet point; clicking it simply brings the user back to the top of the homepage of the site. The second link is found in the sixth bullet point where it says "calendar for the 2008 Olympic Games" (although the word "games" does not appear to be part of the link) while the third link is in the seventh bullet point at the phrase "2008 Olympic Games." The second and third links both take the user to the "Events and Sports Schedule Beijing Olympics 2008." Attached hereto as Exhibit A is a true and correct copy of the homepage of the Site and its Privacy page. 5. The "Events and Sports Schedule Beijing Olympics 2008" page lists a

calendar in grid form of the events and games at the upcoming Olympic Games in Beijing. Across the top is a list of day and dates while down the left side of the page is a list of the events and sports matches. Within the grid are icons that indicate which events take place on which days. Each of the events and sports matches listed on the left side of the grid serves as a link to purchase tickets to that particular type of sports match or event. Each of the icons within the grid serves as a link to purchase tickets to the particular type of sports match or event on the specific date indicated on the grid. For example, clicking on the word "Archery" -3TORRES DEC. IN SUPPORT OF PLAINTIFFS' MOTION

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on the left side of the grid brings the user to the purchasing page for the Archery competitions reflected in Exhibit B attached hereto, which I printed from the Site on August 3, 2008. And, clicking the icon OP shown on the grid under the date Monday, August 11, 2008, and to the right of the word/link "Archery" (referenced above) brings the user to the purchasing page with the option to purchase tickets to the specific Archery competitions taking place on August 11, 2008, as reflected in Exhibit C attached hereto, which I printed from the Site on August 3, 2008. By my count, there are well in excess of 200 links to ticket purchase pages contained on the "Events and Sports Schedule Beijing Olympics 2008" page. 6. The official website of the Beijing 2008 Olympic Games can be found

at en.Beijing2008.cn. That site can be viewed in several language. On a subpage of the official website, available at http://www.beijing2008.cn/spirit/beijing2008/ when viewed in Chinese is the following image:

Attached hereto as Exhibit D is a true and correct copy of a printout of that subpage from the Chinese language version of the official website of the Beijing 2008 Olympic Games. (The printout looks slightly different in terms of the positioning of some of the icons that appears to be due to the conversion from .html to .pdf.) 7. Since last Monday, July 27, 2008, I have received many emails from

people who have ordered tickets from the Site, BeijingTicketing.com. Those who have contacted me uniformly report that they have not received any tickets from the -4TORRES DEC. IN SUPPORT OF PLAINTIFFS' MOTION

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Site. We have submitted declarations from some but not all of those people. Some had already left for Beijing. Many had purchased the tickets from the Site as gifts for family members. 8. There is an online discussion group on Topix.com about

BeijingTicketing.com at http://www.topix.com/forum/olympics/T69SBMFUMDO47718A. Those who have posted comments on the Topix site also report that they have not received tickets. Their comments, like those of the people who have contacted me, reflect feelings of anguish, disbelief, anger and distress. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed on this 3rd day of August, 2008 at Los Angeles, California.

/s/ Diana M. Torres Diana M. Torres

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TORRES DEC. IN SUPPORT OF PLAINTIFFS' MOTION

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