Free Other Notice - District Court of Arizona - Arizona

Case 2:O2—cv—O1815-JAT D0cument1O8—2 Filed O2/06/2007 Page10f4

1 FENNEMORE CRAIG, P.C.
John D. Everroad (No. 002484)
2 Ray K. Hanis (No. 007408;
Jamie A. Brown (No. 0228 0)
3 3003 Nofth Central Avenue
Suite 2600
4 Phoenix, Arizona 85012-2913
Telephone; (602 916-5000
5 Email: everr c c aw. om
Email: r arr s .c
6 Email: bro aw.com
7 Attomgs for Plaintiffs
Rhino ports, Inc. and John E. Shaffer
8
9
1 0 UNITED STATES DISTRICT COURT
W 1 1 DISTRICT OF ARIZONA
I 12 Rhino Sports, Inc., and Arizona No. CV 02-1815-PHX-·JAT
corporation; and John E. Shaffer,
13 individually, AFFIDAVIT OF KIMBERLY JUDD—
i PENNIE
14 Plaintitkz/Counterdefendanix,
15 v.
1 6 Sport Court, Inc. a Delaware corporation,
17 Defendant/Counterclaimant.
18
STATE OF ARIZONA i
1 9 ss.
County of Maricopa
2 0
21 l, Kimberly Judd-Pennie, being first duly sworn, state:
22 1. This declaration is based on my personal knowledge. I am over 21 years of age
2 3 and competent to testify to the following facts.
2 4 2. I am the owner, President and founder of Cybermark International, Inc.
25 ("Cybermark"), which is located in Scottsdale, Arizona. Cybermark is a web and
2 6
Case 2:02-cv—O1815—JAT Document 108-2 Filed O2/06/2007 Page 2 of 4

1 search engine optimization company that helps companies advertise their websites.
2 Essentially, Cybermark helps companies rank high on Internet search engines,
3 such as Google, for certain key word terms so that their prospective customers can
4 find them on the web. These search engines are basically websites that specialize
5 in indexing other websites.
5 3. Cyberrnark’s marketing and optimization services sometimes includes the
7 purchase of certain key words or ad words. A key word is a word or group of
5 words that explain or show what a company does. Therefore, an Internet user may
9 combine different combinations of these words in a search on the Intemet to rind a
10 website for a company that sells the products or provides the services in which
11 they are interested.
12 4. When an Intemet user types in certain key words into a search engine, the search
‘ 13 will yield both sponsored and non-sponsored listings. Sponsored listings include
1 4 those websites where sponsors have purchased the term or terms the Internet user
15 entered. N0n—sponsored listings are generated by the individual search engine
16 pursuant to its ovm mathematical algorithm based on different elements of a web
17 page that assigns it a particular ranking.
18 5. Cybermark provides web and search engine optimization services to Rhino. Such
1 9 services include conducting research with regard to Rhino’s web optimization.
2 0 6. Rhino requested that Cybermark not target the Sport Court mark in our marketing
21 with regard to Rhino on the Internet because of an injunction order that had been
2 2 entered. Cybcrrnark has acknowledged and complied with that request.
23 7. Cybermark purchased the word “courts" in its web marketing and optimization
24 with regard to Rhino’s website. Cybermark did not purchase the Sport Court
2 5 mark.
2 5 8. Rhino’s appwrance as a sponsored ad as shown on the 12/20/06 Google key word
.. 2 -
Case 2:02-cv-01815-JAT Document 108-2 Filed O2/06/2007 Page 3 of 4

1 search for the words sport court was the result of the purchase of the term "courts”
2 with the use of the term "spon" in the Rhino website. This is evidenced by the
3 word "courts" highlighted in the Google search, which shows that this word was
4 the ad word purchased.
5 9. Cybermark has no control over the results a user receives when conducting a
6 search on Google.
7 10. A Google search for the key words sport court yields 22,900,000 hits; in contrast, V
5 a search for the term “sport court" yields only 536,000 hits.
9 11. The Google search on 12/20/06 does not show a search for the specific term "sport
10 court"; it appears such results were obtained using a multiple query that included
11 two separate search terms, "sport" and "court."
12 12, If Rhino was trying to appear as a sponsor match when a consumer typed in
13 queries for the term “sport court", they would need to purchase the term “sport
14 court" Cybermark was specifically told. by Rhino not to purchase the tenn "sport
1 5 court', and Cybermark has not purchased the term “sp0rt c0un."
16
17 DATED this Qxkjw of February, 2007.//‘ / I , ·

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21 SUBSCRIBED AND SWORIQ to bef · =· J = ` day of February 2007.
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2 6 """’“"’”"° · ’ _,,r.,,,, JOE R. CARTER
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Case 2:02-cv-01815-JAT

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