throbber
Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`
`Signature
`Date
`Attachments
`
`Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA548289
`ESTTA Tracking number:
`07/12/2013
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91169544
`Plaintiff
`Allergan, Inc.
`KENNETH L WILTON
`SEYFARTH SHAW LLP
`2029 CENTURY PARK EAST, SUITE 3500
`LOS ANGELES, CA 90067-3021
`UNITED STATES
`kwilton@seyfarth.com, jsutherland@seyfarth.com,
`Hinchey_Susan@Allergan.com, kelko@seyfarth.com
`Testimony For Plaintiff
`Kenneth L. Wilton
`kwilton@seyfarth.com, jsutherland@seyfarth.com,
`Hinchey_Susan@Allergan.com, kelko@seyfarth.com
`/Kenneth L. Wilton/
`07/12/2013
`2012-06-27-12 Deposition of Mark Chaplin.pdf(115884 bytes )
`2012-06-27-12 Deposition of Mark Chaplin-Exhibit 1.pdf(110670 bytes )
`2012-06-27-12 Deposition of Mark Chaplin-Exhibit 2.pdf(292662 bytes )
`2012-06-27-12 Deposition of Mark Chaplin-Exhibit 3.pdf(353990 bytes )
`2012-06-27-12 Deposition of Mark Chaplin-Exhibit 4.pdf(298418 bytes )
`2012-06-27-12 Deposition of Mark Chaplin-Exhibit 5.pdf(363599 bytes )
`2012-06-27-12 Deposition of Mark Chaplin-Exhibit 6.pdf(2106505 bytes )
`2012-06-27-12 Deposition of Mark Chaplin-Exhibit 7.pdf(5437966 bytes )
`2012-06-27-12 Deposition of Mark Chaplin-Exhibit 8.pdf(955451 bytes )
`2012-06-27-12 Deposition of Mark Chaplin-Exhibit 9.pdf(681992 bytes )
`2012-06-27-12 Deposition of Mark Chaplin-Exhibit 10.pdf(2674348 bytes )
`2012-06-27-12 Deposition of Mark Chaplin-Exhibit 11.pdf(1889790 bytes )
`2012-06-27-12 Deposition of Mark Chaplin-Exhibit 12.pdf(3201418 bytes )
`2012-06-27-12 Deposition of Mark Chaplin-Exhibit 13.pdf(190135 bytes )
`2012-06-27-12 Deposition of Mark Chaplin-Exhibit 14.pdf(2720900 bytes )
`
`

`
`Mark Chaplin - 6/27/12
`
`US PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`ALLERGAN,
`
`INC.,
`
`CERTIFIEQ CGPY
`
`KRL GROUP,
`
`INC.,
`
`Opposer,
`
`Applicant.
`
`Opposition No.
`
`91169544
`
`DEPOSITION OF MARK CHAPLIN
`
`Irvine, California
`
`Wednesday, June 27, 2012
`
`Job Number:
`
`51136
`
`Reported by: NIKKI ROY
`
`CSR NO. 3052
`
`TSG Reporting - Worldwide — 877-702-9580
`
`

`
`Mark Chaplin - 6/27/12
`
`Page 2
` Deposition of MARK CHAPLIN, taken on behalf of the
`Opposer, at 3161 Michelson Drive, Conference Room 1202,
`Irvine, California, on Wednesday, June 27, 2012 at
`8:24 a.m., before NIKKI ROY, CSR No. 3052.
`
`APPEARANCES OF COUNSEL:
`
`FOR THE OPPOSER:
` SEYFARTH SHAW
` BY: KENNETH L. WILTON, Attorney at Law
` 2029 Century Park East
` Los Angeles, California 90067
`
`TSG Reporting - Worldwide - 877-702-9580
`
`1
`2
`3
`4
`
`5 6 7
`
`8 9
`
`10
`
`11
`
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`

`
`Mark Chaplin - 6/27/12
`
`Page 3
`
` I N D E X
`
`WITNESS EXAMINATION PAGE
`MARK CHAPLIN
` MR. WILTON 5
`
` E X H I B I T S
`
` NUMBER DESCRIPTION PAGE
`Exhibit 1 Notice of Testimony Deposition 5
` of Allergan, Inc.
`
`Exhibit 2 Worldwide Regulatory Status - GL 14
`
`Exhibit 3 BOTOX Cosmetic 2002 Print Media 17
` Plan
`Exhibit 4 BOTOX Cosmetic 2003 Print Media 18
` Plan
`
`Exhibit 5 BOTOX Cosmetic 2004 Print Media 20
` Plan
`Exhibit 6 Collection of documents, 24
` advertisements placed in
` magazines
`Exhibit 7 Collection of advertisements 26
`Exhibit 8 Copies of web page 32
`Exhibit 9 Copies of pages from website 34
` www.botoxcosmetic.com
`
`Exhibit 10 Pages from the botoxcosmetic.com 35
` website
`Exhibit 11 Allergan annual report 2002 45
`
`TSG Reporting - Worldwide - 877-702-9580
`
`1
`
`2 3
`
`4
`5
`
`6 7
`
`8 9
`
`10
`
`11
`
`12
`
`13
`14
`
`15
`
`16
`17
`
`18
`19
`20
`21
`
`22
`
`23
`24
`25
`
`

`
`Mark Chaplin - 6/27/12
`
`Page 4
`
` I N D E X (CONTINUED):
`
` EXHIBITS (CONTINUED):
` NUMBER DESCRIPTION PAGE
`Exhibit 12 Allergan annual report 2006 49
`Exhibit 13 Portion of page 2 from 50
` Exhibit 12
`
`Exhibit 14 Allergan annual report 2011 53
`
` QUESTIONS INSTRUCTED NOT TO ANSWER
`
` (None)
`
` INFORMATION REQUESTED
`
` (None)
`
`TSG Reporting - Worldwide - 877-702-9580
`
`1
`
`2 3
`
`4
`5
`6
`
`7
`
`8 9
`
`10
`
`11
`12
`
`13
`
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`

`
`Mark Chaplin - 6/27/12
`
`Page 5
`
` IRVINE, CALIFORNIA, WEDNESDAY, JUNE 27, 2012
` 8:24 A.M.
`
` MARK CHAPLIN
` called as a deponent and sworn in by
` the deposition officer, was examined
` and testified as follows:
`
` EXAMINATION
`BY MR. WILTON:
` Q. Good morning, Mr. Chaplin. How are you?
` A. Morning. Very well.
` Q. Glad to hear that.
` A. Perfect.
` MR. WILTON: Let me mark as Exhibit 1 to this
`deposition -- and this is really a housekeeping chore.
` (The document referred to was marked by
` the CSR as Deposition Exhibit 1 for
` identification and attached to the
` deposition transcript hereto.)
` MR. WILTON: It is a document entitled "Notice
`of Testimony Deposition of Allergan, Inc." stating that
`we'll be taking the deposition of Mr. Chaplin this
`morning at 8:00 a.m. at the offices of Gibson, Dunn &
`Crutcher in Irvine, California.
`
`TSG Reporting - Worldwide - 877-702-9580
`
`1
`2
`
`3 4
`
`5
`6
`7
`
`8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`

`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`Mark Chaplin - 6/27/12
`
`Page 6
` It is dated June 21, 2012 with a certificate of
`service sending it to the attorney for appellant KRL
`Group, Inc. both by e-mail and by mail. So notice was
`served and the attorney Mr. Rivera is not present.
`Stating the obvious.
` THE WITNESS: Uh-huh.
`BY MR. WILTON:
` Q. Where do you currently work?
` A. I currently work for Allergan.
` Q. And how long have you worked for Allergan?
` A. Allergan in total I've worked for over eight
`years now, and I've been working in the United States
`office for about a year and a half.
` Q. What was your first position at Allergan?
` A. First position was termed a product specialist.
` Q. And what were your duties and responsibilities
`as a product specialist?
` A. Duties were the promotion of BOTOX into the
`therapeutic market.
` Q. What do you mean by the "promotion of BOTOX
`into the therapeutic market"?
` A. So to make it easier, I mean, I was really a
`sales rep, as it were, for Allergan, the therapeutic
`market. We have two divisions within our organization
`with BOTOX. Part of that is sold for therapeutic
`
`TSG Reporting - Worldwide - 877-702-9580
`
`

`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`Mark Chaplin - 6/27/12
`
`Page 7
`purposes, an example being spasticity or dystonia. The
`other part of our business is within the cosmetic
`industry.
` Q. And although I know everybody in the room knows
`what it is, can you tell us what the BOTOX product is?
` A. BOTOX is a neuromodulator, and it consists --
`it's a pharmaceutical product. It consists of botulinum
`toxin, along with some excipients, the excipients being
`human serum albumen and sodium chloride. And it works by
`relaxing the muscle, and in so doing can be used for
`therapeutic purposes or cosmetic purposes.
` MR. WILTON: And just for your edification, if
`you have any spelling issues, since it's just the three
`of us, go ahead and ask as we go along.
` Q. How long were you a product specialist at
`Allergan?
` A. I was a product specialist for about a year and
`a half.
` Q. And what's your next position?
` A. My next position was what was termed regional
`scientific services manager.
` Q. What were your duties as regional scientific
`services manager for Allergan?
` A. That was more as the term would suggest a more
`scientific-based role. It was dealing with scientific
`
`TSG Reporting - Worldwide - 877-702-9580
`
`

`
`Mark Chaplin - 6/27/12
`
`Page 8
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`requests, both internally and externally. So if -- to
`give an example, if a clinician had a specific high-brow
`question with regard to the science of botulinum toxin or
`indeed the disease area that would be passed on to a
`regional scientific expert rather than being dealt with
`by the product specialist who I previously was.
` Q. And with regard to your position as a regional
`scientific services manager, did you only work with the
`BOTOX product or did you work with other products?
` A. I only worked with the BOTOX product.
` Q. And how long were you a regional scientific
`services manager?
` A. I was a regional scientific services manager
`for approximately five years.
` Q. And what position did you take after that
`five-year period?
` A. After that five-year period I took a secondment
`position to work out of our Irvine headquarters in
`California. That was doing a job which is termed global
`strategic marketing. And I was a product manager within
`that department, and that was concerned solely with BOTOX
`Cosmetic, so I moved from the therapeutic area of BOTOX
`on to the cosmetic area of BOTOX.
` Q. And what are your duties or responsibilities as
`the global strategy marketing person for BOTOX?
`
`TSG Reporting - Worldwide - 877-702-9580
`
`

`
`Mark Chaplin - 6/27/12
`
`Page 9
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` A. BOTOX Cosmetic. And my responsibilities are
`looking at the life cycle management of BOTOX Cosmetic,
`really try to establish how to make this product continue
`to be successful in the future.
` So for an example, we may look at new
`indications that we would like to develop. We may look
`at improving the actual product we have, or may be as
`simple as even improving the delivery mechanism or indeed
`even the packaging.
` Q. And as in your role as global strategic
`marketing manager for the BOTOX Cosmetic product, are you
`involved with any of the day-to-day testing or promotion
`of the product?
` A. Yes, I am, in that I deal with the people, or I
`speak regularly with the people who are dealing with that
`side of the business on a at least a weekly, if not daily
`basis.
` Q. And just for the record, could you tell us what
`your education has been after high school?
` A. Okay. So I went to the University of
`St. Andrews and did a BSC in cell biology, and that was
`from the years of '88 to '92. In '92 I took a Ph.D.
`position at the University of Dundee studying in cell and
`microbiology. That was completed in about 1995.
` Q. And are both of those universities in Scotland?
`
`TSG Reporting - Worldwide - 877-702-9580
`
`

`
`Mark Chaplin - 6/27/12
`
`Page 10
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` A. Yes, they are.
` Q. Do you know generally the history of the
`product that is sold under the BOTOX trademark?
` A. Yes, I do.
` Q. And could you describe how that product was
`developed?
` A. The product was developed initially as an
`occular product. So it was an Alan Scott who developed a
`product which at the time was called oculinum to
`initially looking at treating strabismus and occular
`problems.
` We acquired that product back in the '80s and
`looked at developing it for other indications as well as
`some of these occular problems. And it was indeed at the
`end of the 1980s where we were granted our first license.
` Q. Do you know when Allergan first started using
`the BOTOX trademark in connection with the botulinum
`toxin product you just described?
` A. It will have been around the end of the late
`1980s. So certainly we were granted our first FDA
`approval at the end of the 1980s, and we've been using
`that trademark ever since.
` Q. Which is my next question. Has Allergan been
`continuously using the BOTOX trademark since sometime
`around the late 1980s?
`
`TSG Reporting - Worldwide - 877-702-9580
`
`

`
`Mark Chaplin - 6/27/12
`
`Page 11
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` A. Yes, we have.
` Q. And you mentioned a license. Is the BOTOX
`product regulated by the US Food and Drug Administration?
` A. Yes, we are.
` Q. And are there similar organizations in other
`countries to the Food and Drug Administration?
` A. Yes, there are.
` Q. Is the BOTOX product regulated with regard to
`those organizations as well?
` A. Yes, it is.
` Q. And you mentioned a license. Is a license the
`same thing as an approval by the FDA?
` A. Correct, yes, it is.
` Q. And the BOTOX product, is it approved for
`certain indications?
` A. Yes, it is.
` Q. What is an indication?
` A. An indication is something specific to what
`that product would be used for. So an example would be
`dystonia, spasticity, blepharospasm. So it's a very
`specific condition to which BOTOX would be used for.
` Q. So is it a condition that a patient would have?
` A. Patient or consumer. So you can think of BOTOX
`being used from the cosmetic, say, industry. And again
`that wouldn't necessarily be a patient per se. You would
`
`TSG Reporting - Worldwide - 877-702-9580
`
`

`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`Mark Chaplin - 6/27/12
`
`Page 12
`say that is more a consumer, so can be used for consumers
`or patients. "Patient," we would tend to use that term
`more when we're talking about the therapeutic market.
` Q. But the individual using the product would have
`whatever the condition is --
` A. Correct.
` Q. -- for which the product has been approved?
` A. Yes. Correct.
` Q. And you've been making the distinction between
`therapeutic and cosmetic. Is there a cosmetic indication
`for the BOTOX product?
` A. Yes, there is.
` Q. And what is that cosmetic condition?
` A. That is for the treatment of moderate to sever
`glabellar lines in adult patients under the age of 65.
`Glabellar spelled g-l-a-b-b-e-l-a-r.
` Q. One B.
` A. G-l-a-b -- yeah, g-l-a-b-e-l-l-a-r.
` And if you want to put you could actually put
`in brackets "frown lines." It's easier for a lot of
`people to -- glabellar lines is -- I don't know if you
`know if anyone is interested. It's that line here
`(indicating). It's like your frown line. The medical
`determine is glabellar lines.
` So it's for the treatment of moderate to sever
`
`TSG Reporting - Worldwide - 877-702-9580
`
`

`
`Mark Chaplin - 6/27/12
`
`Page 13
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`glabellar lines in patients under the age of 65.
` Q. Is there a minimum age for which the BOTOX
`Cosmetic product has been approved for use in the
`treatment of glabellar lines?
` A. Well, it's adult patients. So it would be over
`the age of 18.
` Q. When was the BOTOX product first approved for
`cosmetic indication in the United States?
` A. The United States was in 2002 and I believe it
`was April 2002.
` Q. And had the product been approved for the
`cosmetic indication in countries other than the United
`States prior to April 2002?
` A. Yes, it has.
` Q. When was the BOTOX product first approved for
`the cosmetic indication in the United States?
` A. It was in April 2002.
` Q. And had the product been approved for the
`cosmetic indication in any other countries other than the
`United States prior to April 2002?
` A. Yes, it had.
` Q. And has the product been approved for the
`cosmetic indication in countries other than the United
`States after April 2002?
` A. Yes, it has.
`
`TSG Reporting - Worldwide - 877-702-9580
`
`

`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`Mark Chaplin - 6/27/12
`
`Page 14
` MR. WILTON: Let's mark this as Exhibit 2. Not
`sure how you want to mark that.
` (The document referred to was marked by
` the CSR as Deposition Exhibit 2 for
` identification and attached to the
` deposition transcript hereto.)
`BY MR. WILTON:
` Q. Handing you what we've marked as Exhibit 2.
` A. Uh-huh.
` Q. Have you ever seen this document before?
` A. Yes, I have.
` Q. And what is it?
` A. This outlines the worldwide regulatory status
`of BOTOX for glabellar lines.
` Q. Is that what the "GL" means at the top of this
`document?
` A. Yes, it is. It's an acronym we use at the
`organization to stand for glabellar lines.
` Q. And glabellar lines are the cosmetic indication
`that we've been talking about?
` A. Correct. They are the frown lines which I
`mentioned.
` Q. Are any of the countries on this list, to your
`knowledge, Spanish-speaking?
` A. Yes, there are.
`
`TSG Reporting - Worldwide - 877-702-9580
`
`

`
`Mark Chaplin - 6/27/12
`
`Page 15
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` Q. And could you tell us which ones?
` A. Spain, some of the Latin American countries as
`well. There will be some Spanish speaking, so Brazil, I
`know they speak some Spanish there; Columbia, I believe
`they speak to Spanish there. Bolivia and Chile I think
`they speak Spanish there.
` Q. How about El Salvador?
` A. Oh El, Salvador, yeah, definitely.
` Q. Mexico?
` A. El Salvador and Mexico as well.
` Q. Has Allergan promoted the BOTOX product for the
`cosmetic indication in the United States?
` A. Yes, it has.
` Q. And does it promote it under the mark BOTOX or
`does it promote -- use another term with BOTOX?
` A. It uses another term which we call BOTOX
`Cosmetic.
` Q. And why does Allergan use BOTOX Cosmetic to
`promote the BOTOX product for the cosmetic indication?
` A. That was an FDA requirement.
` Q. After Allergan received approval for the
`cosmetic indication in April 2002, did Allergan start any
`kind of promotion for the product?
` A. Yes, we did.
` Q. And what kind of promotion?
`
`TSG Reporting - Worldwide - 877-702-9580
`
`

`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`Mark Chaplin - 6/27/12
`
`Page 16
` A. A whole host of different promotions. And so
`direct-to-consumer promotion in the United States, which
`would include magazine articles, television articles,
`radio articles, also a website was initiated as well
`specific to the BOTOX Cosmetic brand.
` Q. What is direct-to-consumer advertising?
` A. Direct-to-consumer advertising is the United
`States allows us to promote direct to the consumers, the
`consumers being those people who we believe may be
`interested in using BOTOX Cosmetic.
` Q. What is the purpose of that type of
`advertising?
` A. It's to generate interest in -- first of all,
`to generate interest in BOTOX Cosmetic to the population
`of people who we believe may be interested in our
`product.
` Q. Do you know approximately how much money
`Allergan spent in 2002 to promote the BOTOX Cosmetic
`product?
` A. Yes, I do.
` Q. And how much is that?
` A. It was in the region of 10 million, was it?
` Q. I'm asking you.
` A. Yeah, I think it was $10 million. So I do
`know, but I think it's $10 million.
`
`TSG Reporting - Worldwide - 877-702-9580
`
`

`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`Mark Chaplin - 6/27/12
`
`Page 17
` Q. Let me show you what we will mark as Exhibit 3.
` (The document referred to was marked by
` the CSR as Deposition Exhibit 3 for
` identification and attached to the
` deposition transcript hereto.)
` THE WITNESS: Thank you.
`BY MR. WILTON:
` Q. Have you seen this document before?
` A. Yes, I have.
` Q. And what is it?
` A. This is the print media plan from 2002.
` Q. What is a print media plan?
` A. This just gives an idea of which magazines we
`were going to be placing adverts in.
` So down the left there is a number of different
`magazines, More, Allure, In Style, Vogue, et cetera.
`Along the top there is some dates, and this gives us an
`idea of when we will be placing these ads in these
`magazines.
` Q. And so if we look in the third column, the
`first phrase that appears, it says "Megan spread."
` Do you see that?
` A. Yes, I do.
` Q. And was "Megan spread" an identification of a
`particular advertisement for the BOTOX Cosmetic product?
`
`TSG Reporting - Worldwide - 877-702-9580
`
`

`
`Mark Chaplin - 6/27/12
`
`Page 18
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` A. Yes, it was.
` Q. Perhaps involving someone named Megan?
` A. Correct.
` Q. And so the $10 million that you talked about,
`was that spent on the ads that appeared in these
`magazines?
` A. Yes, it was, yeah.
` Q. And did Allergan advertise the BOTOX Cosmetic
`product on television in 2002?
` A. Yes, it did.
` Q. And do you know whether the amount spent on
`television advertising for the BOTOX Cosmetic product in
`2002 was around 6 to $7 million?
` A. Yes, it was.
` Q. So the total spend for 2002 was that somewhere
`in the neighborhood of 16 to $17 million?
` A. That's correct.
` Q. In 2003 was the amount spent by Allergan in
`advertising the BOTOX Cosmetic product around 12 to $14
`million?
` A. Yes, it was.
` (The document referred to was marked by
` the CSR as Deposition Exhibit 4 for
` identification and attached to the
` deposition transcript hereto.)
`
`TSG Reporting - Worldwide - 877-702-9580
`
`

`
`Mark Chaplin - 6/27/12
`
`Page 19
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`BY MR. WILTON:
` Q. I've just handed you something that we've
`marked as Exhibit 4.
` Have you ever seen this document before?
` A. Yes, I have.
` Q. And what is that document?
` A. This again is a print media plan, but this time
`from 2003.
` Q. Who prepares the print media plans for
`Allergan?
` A. That is done by the marketing department.
` Q. And so if we look at Exhibit 4, on the
`left-hand column it lists a number of magazines; is that
`correct?
` A. That is correct.
` Q. Are those magazines in which advertisements
`appeared for the BOTOX Cosmetic product?
` A. Yes, it was.
` Q. And if we look at each of the columns across
`the page, there are little boxes with names in them.
` Do you see that?
` A. Yes, I do.
` Q. And the first one that appears in the second
`column says "Megan revised page."
` A. Yes.
`
`TSG Reporting - Worldwide - 877-702-9580
`
`

`
`Mark Chaplin - 6/27/12
`
`Page 20
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` Q. Was that an advertising -- an advertisement
`involving Megan?
` A. Yes, it was.
` Q. And then in the middle of the page in blue
`there's -- looks like the phrase "Friends."
` Do you see that?
` A. Yes, I do.
` Q. Was that an indicator for another advertisement
`that involved two or more people?
` A. Yes, it was.
` Q. And that was an advertisement for the BOTOX
`product?
` A. Yes, it was.
` Q. BOTOX Cosmetic product.
` A. Correct.
` Q. And so the 12 to $14 million in print
`advertisements spent in 2003 for the BOTOX Cosmetic
`product, that spend is reflected in the advertisements
`that appeared in each of these magazines?
` A. Correct.
` (The document referred to was marked by
` the CSR as Deposition Exhibit 5 for
` identification and attached to the
` deposition transcript hereto.)
`///
`
`TSG Reporting - Worldwide - 877-702-9580
`
`

`
`Mark Chaplin - 6/27/12
`
`Page 21
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`BY MR. WILTON:
` Q. I've just handed you a document that we've
`marked as Exhibit 5.
` Have you seen this document before?
` A. Yes, I have.
` Q. And what is it?
` A. This again is another print media plan, but
`this time from 2004.
` Q. And does this chart on Exhibit 5 reflect the
`publications in which advertisements for the BOTOX
`Cosmetic product were run?
` A. Yes, it does.
` Q. And so on the left-hand side we have a list of
`publications such as Glamour, In Style, More, Vogue. And
`those are publications in which ads were run, correct?
` A. Correct.
` Q. And in each of the columns there is a name as
`well. What -- the first one that appears in the second
`column says "Doctors spread."
` A. Uh-huh.
` Q. Do you see that?
` A. Yes, I do.
` Q. And what does that indicate?
` A. That was an advert that we ran which was more
`specific to the doctor.
`
`TSG Reporting - Worldwide - 877-702-9580
`
`

`
`Mark Chaplin - 6/27/12
`
`Page 22
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` Q. Was the total amount spent by Allergan in
`testing the BOTOX product in the United States in 2004
`about $25 million?
` A. Yes, it was.
` Q. And does that include anything other than print
`advertisements?
` A. Yes, it does.
` Q. And what other types of media?
` A. Other types of media would include
`advertisement on television, advertisement on the radio.
`There would also be some advertisement on the web as
`well.
` Q. Does Allergan still advertise the BOTOX
`Cosmetic product in the United States?
` A. Yes, we do.
` Q. And in 2008 was the total amount spent by
`Allergan advertising the BOTOX product in the United
`States about $16.7 million?
` A. Yes, it was.
` Q. And that included print advertisement as well
`as television and radio and web?
` A. Yes, it did.
` Q. In 2009 was the total amount spent by Allergan
`advertising the BOTOX product in the United States about
`$7.6 million?
`
`TSG Reporting - Worldwide - 877-702-9580
`
`

`
`Mark Chaplin - 6/27/12
`
`Page 23
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` A. It was.
` Q. Why did it drop between 2008 and 2009?
` A. There was -- that coincided with the recession
`which we all felt at that time, and we sold less product.
`So consequently we had less money to invest in our
`advertising at that point.
` Q. In 2010 was the total amount spent by Allergan
`advertising the BOTOX product in the United States about
`$16.3 million?
` A. It was.
` Q. And in 2011 was the total amount spent by
`Allergan advertising the BOTOX product in the United
`States about $15.6 million?
` A. It was.
` Q. And do you know how much was -- is intended to
`be spent advertising the BOTOX Cosmetic product in the
`United States in this year?
` A. I don't have an exact figure, but it will be
`around in the same ballpark as the figures you've just
`explained.
` Q. So somewhere around 14 to $15 million?
` A. Correct. It will be over 10 million.
` Q. And for each of those years, does that include
`print advertisement?
` A. Yes, it does.
`
`TSG Reporting - Worldwide - 877-702-9580
`
`

`
`Mark Chaplin - 6/27/12
`
`Page 24
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` Q. Does it include television advertisement?
` A. Yes it does.
` Q. Does it include web advertisement?
` A. Yes, it does.
` Q. Do you have a rough idea of the amount spent by
`Allergan advertising the BOTOX product in the United
`States for the 2005, 2006 and 2007 period?
` A. Again it will be in line with the numbers which
`you have just outlined to me.
` Q. So approximately $15 million per year?
` A. That would be a ballpark figure, yes.
` Q. Like to mark as Exhibit 6 a collection of
`documents, which if you'll notice, they're double-sided.
` (The document referred to was marked by
` the CSR as Deposition Exhibit 6 for
` identification and attached to the
` deposition transcript hereto.)
`BY MR. WILTON:
` Q. Can you tell us what Exhibit 6 is?
` A. These are advertisements that were placed in
`magazines.
` Q. And what are they advertisements for?
` A. These are advertisements for BOTOX.
` Q. And so if we look at the page that's marked AGN
`0341 --
`
`TSG Reporting - Worldwide - 877-702-9580
`
`

`
`Mark Chaplin - 6/27/12
`
`Page 25
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` A. Yep.
` Q. -- is this a sample of an advertisement that
`would be called the "Friends" advertisement that we saw
`on the chart we were looking at just previously?
` A. Yes, it would.
` Q. And are these advertisements, are they kept in
`the files of Allergan in the normal course of its
`business?
` A. Yes, they are, yep.
` Q. And these are copies -- are these copies of
`advertisements that were actually placed in print media?
` A. Yes, they were.
` Q. And are these advertisements all advertisements
`that were used in the United States?
` A. Yes, they are.
` Q. Now, with regard to the first advertisement,
`the one that's in black and white --
` A. Uh-huh.
` Q. -- numbered AGN 0338, is that for BOTOX
`Cosmetic or is that just for BOTOX in general?
` A. This is for BOTOX in general.
` Q. So is there advertising for the BOTOX product
`both -- let me rephrase that.
` Are there advertisements for the BOTOX product
`that are relate to the therapeutic indications as well as
`
`TSG Reporting - Worldwide - 877-702-9580
`
`

`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`Mark Chaplin - 6/27/12
`
`Page 26
`advertisements that relate to the cosmetic indication?
` A. Yes, there is.
` Q. Have those types of advertisements been run for
`the last 10 years?
` A. Yes, there have, or yes, there has been.
` Q. And who at -- or what department at Allergan
`maintains copies of advertisements?
` A. That would be the marketing department and also
`the PR department.
` Q. And they -- do they keep copies of the
`advertisements in Allergan's files?
` A. Yes, they do, yep.
` Q. Do these copies of advertisements come from
`copies that were kept in Allergan's files?
` A. Yes, they do.
` Q. I'd like to show you what we'll mark as
`Exhibit 7.
` (The document referred to was marked by
` the CSR as Deposition Exhibit 7 for
` identification and attached to the
` deposition transcript hereto.)
` THE WITNESS: Thank you.
`BY MR. WILTON:
` Q. Exhibit 7 consists of a number of different --
`it's actually a collection. I didn't want to mark these
`
`TSG Reporting - Worldwide - 877-702-9580
`
`

`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`Mark Chaplin - 6/27/12
`
`Page 27
`as separate ones. They're stapled together. The one at
`the top is numbered AGN 0308. And looking at that first
`one, can you tell us what it is?
` A. This is a front cover of Elle Magazine.
` Q. And from what period of time?
` A. This is from -- actually, when is it from? Oh,
`it's from 2003. Sorry. It's from March 2003.
` Q. And was there an advertisement for the BOTOX
`Cosmetic product in Elle Magazine in March of 2003?
` A. Yes, there was.
` Q. Does that advertisement appear in the
`collection of documents I just sent you -- gave you?
` A. Yes, it does.
` Q. And where do we find it?
` A. That is on page what's termed here 0310.
` Q. And this is an advertisement that has the
`phrase at the top "It took 40 years to get it and
`10 minutes to do something about it"?
` A. That is correct.
` Q. Is this an example of direct consumer
`advertising?
` A. Yes, it is.
` Q. And if we look at the next document contained
`within Exhibit 7, has the number AGN 0313 on it --
` A. Uh-huh.
`
`TSG Reporting - Worldwide - 877-702-9580
`
`

`
`Mark Chaplin - 6/27/12
`
`Page 28
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` Q. -- what is this?
` A. This is actually an article in what's termed
`Skin and Allergy News.
` Q. What is Skin and Allergy News?
` A. This is more a newspaper, per se, that would be
`concentrated more on the dermatologist rather than the
`actual consumer itself.
` Q. So would this be an example of
`direct-to-consumer advertising or is there another term
`for it?
` A. This would be more designed towards the actual
`person who would be doing the injections. So the actual
`dermatologist as an example of a body of people who we
`would make

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket