Case 1:17-cv-00868-CFC-SRF Document 252 Filed 08/19/20 Page 1 of 5 PageID #: 10072
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`(cid:38)(cid:17)(cid:36)(cid:17)(cid:3)(cid:49)(cid:82)(cid:17)(cid:3)(cid:20)(cid:26)(cid:16)(cid:27)(cid:25)(cid:27)(cid:16)(cid:38)(cid:41)(cid:38)(cid:16)(cid:54)(cid:53)(cid:41)
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`PUBLIC VERSION(cid:3)
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`)))))))))))))
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`UNIVERSITY OF MASSACHUSETTS and
`CARMEL LABORATORIES, LLC,
`Plaintiffs,
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`v.
`L’ORÉAL USA, INC.,
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`Defendant.
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`DECLARATION OF CINDY CHEUNG
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`Case 1:17-cv-00868-CFC-SRF Document 252 Filed 08/19/20 Page 2 of 5 PageID #: 10073
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`I, Cindy Cheung, declare as follows:
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`1.
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`I am the Vice President of Marketing for L’Oréal USA Paris, a brand of
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`L’Oréal USA, Inc. (“L’Oréal USA”), whose products have been accused of infringement in this
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`case and have firsthand, personal knowledge of the facts set forth below.
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`2.
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`I understand that Plaintiffs have requested that L’Oréal USA provide non-
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`U.S. sales data for products containing the same formulas as the accused products sold in the
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`United States.
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`3.
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`It would very difficult, extremely time consuming (if even possible), and
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`unduly burdensome to identify and provide financial data for products sold abroad with the same
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`formulas as the accused products, for several reasons. First, the financial databases track
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`products by product name and material number, not formula numbers. Material numbers are
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`assigned to products by the respective marketing departments within each brand. There is no
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`way to input a formula number into the financial databases to identify where that formula may
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`have been sold.
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`4.
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`While the financial databases can be searched by material number, the
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`material number is not matched to a formula. Products containing the same name or material
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`number may use different formulas, depending on where the product is sold. For example, the
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`officialization document for formula 782208 56, which relates to L’Oréal Paris Revitalift Daily
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`Volumizing Moisturizer sold in the U.S., identifies this formula as officialized for the United
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`States and Canada, and refers to this formula number as the “US version.” Several other
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`formulas for L’Oréal Paris products sold in the U.S. contain similar officializations for only the
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`U.S. and Canada. This includes formulas for: L’Oréal Paris Age Perfect Cell Renewal Day SPF
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`15; L’Oréal Paris Revitalift Anti-Wrinkle + Firming SPF 30 Day Lotion; L’Oréal Paris Collagen
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`Case 1:17-cv-00868-CFC-SRF Document 252 Filed 08/19/20 Page 3 of 5 PageID #: 10074
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`Moisture Filler Day Lotion; L’Oréal Paris Wrinkle Expert 55+ Anti- Wrinkle Eye Treatment;
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`and L’Oréal Paris Youth Code Texture Perfector Serum Concentrate. Attached hereto as Exhibit
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`A are the first pages of the officialization documents for these formulas. Formulas for other
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`L’Oréal Paris products sold in the U.S. were officialized for different regions. For example,
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`formula no. 917133 3, which relates to L’Oréal Paris Age Perfect Rosy Tone SPF 30 Moisturizer
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`sold in the U.S., was officialized for North America and the Dominican Republic. Formula no.
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`782011 83, which relates to the Youth Code Texture Perfector Day/Night Cream sold in the
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`U.S., was officialized for all regions except Asia. Attached hereto as Exhibit B are the first
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`pages of the officialization documents for these two formulas.
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`5.
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`Due to the fact that formulas for products may vary depending on the
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`country in which they are meant to be sold, the only way to determine if a particular formula was
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`included in a product sold in another country is to review the foreign product packaging, or
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`carton artwork for that product. While I cannot speak for other U.S. brands or for regions
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`outside the U.S., I know that for L’Oréal Paris products sold in the United States, the formula
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`numbers can typically be found on the product packaging near the ingredient list. If the product
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`packaging used in other countries also includes formula numbers, then we would need to review
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`the packaging for each product from each country to determine whether the formula number for
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`the foreign-sold product matches a formula number of an accused product sold in the United
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`States. Therefore, we could not simply review the carton artwork for just the 130 products in
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`this case, assuming we could even find them. Rather, we would need to review all skincare
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`products sold in other countries to see if the carton artwork for those products refers to a formula
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`number for a product in this case.
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`Case 1:17-cv-00868-CFC-SRF Document 252 Filed 08/19/20 Page 4 of 5 PageID #: 10075
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`6.
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`Indeed, L’Oréal USA does not prepare or maintain artwork for products
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`sold outside the United States. Thus, to undertake this review, we would need to request the
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`product artwork from the marketing departments for each brand, from each county where
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`skincare products are sold. I do not know how many countries would be implicated by this
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`request, nor do I know how one would go about identifying those countries. I also do not know
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`how receptive each contact will be to providing the requested information. As I testified during
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`my deposition, coordination with L’Oréal Paris marketing departments in other countries is hit or
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`miss, depending on the person who is involved. It would be a serious disruption to my business
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`to have to contact and follow up with L’Oréal Paris marketing departments all over the world to
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`obtain carton artwork for skincare products that may or may no longer be sold in that market. I
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`cannot even estimate how long it would take to acquire all of this packaging from every country
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`since 2011, and then review this material, but I believe it would be more than 100 human hours.
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`7.
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`If the formula numbers for the accused products are able to be matched up
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`to products sold in another country, we would then need to obtain the material codes for those
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`products from each marketing department in each region. This information would then need to
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`be provided to the departments that maintain foreign financial data, as I understand that the
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`L’Oréal USA finance departments corresponding to each of the four L’Oréal USA divisions
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`maintain sales data for products sold only in the United States. I do not know how long it would
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`take to gather this information. However, August is the most difficult time of the year to obtain
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`information from Europe, because most people take extended vacations during this time period.
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`Having to act as a go-between for these departments in every country would also be extremely
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`time-consuming.
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`Case 1:17-cv-00868-CFC-SRF Document 252 Filed 08/19/20 Page 5 of 5 PageID #: 10076
`Case 1:17-cv-00868-CFC-SRF Document 252 Filed 08/19/20 Page 5 of 5 PageID #: 10076
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`8.
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`I have also been asked to provide information about the location of claims
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`substantiation testing. As I explained during my deposition, from a marketing perspective, the
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`location of where a formula may have been tested does not matter, and may vary from product to
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`product. The fact that a product was sold in the United States does not mean that the formula for
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`that product was tested in the United States. From a marketing perspective, what matters is that
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`the marketing claims are supported by testing.
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`9.
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`L’Oréal USA would not know if a marketing department in another
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`country relied on a test performed in the United States to market that product abroad. For the
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`L’Oréal Paris products sold in the US, we work with the labs and the claims!legal department to
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`ensure that our claims for each product are supported by testing. If this is the same process for
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`other countries, then those departments in each of the countries would need to be contacted to
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`determine what testing supports each product sold abroad. Given the number of products, brands
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`and departments that would be implicated, this undertaking would be extremely difficult.
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`Executed this i day of August, 2020, at New York, New York.
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`I declare under penalty of perjury under the laws of the United States of America that the
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`foregoing is true and correct.
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`Cindy Cheun
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