4 The
`
`7 yersLAW FIRM
`
`
`344 Maple Avenue West, Suite 389
`Vienna, VA 22180
`
`Tel. (866) 455-8800
`Fax (270) 477-4574
`
`SwyersLaw.com
`
`Writer's Direct: (866)455-8800 x704
`Writer's Direct Facsimile: (270)477-4574
`ms
`ers Sw ersLaw.com
`
`October 24, 2009
`
`VIA CERTIFIED MAIL
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`Trademark Trial and Appeal Board
`P.O. Box 1451
`
`Alexandria, VA 22313-1451
`
`RE:
`
`Research in Motion vs. Defining Presence Marketing Group, Inc. et al.
`
`Trademark Trial and Appeal Board
`
`Opposition Proceeding No.2 91178668
`Mark(S): CRACKBERRY
`Serial Nos.: 77/059,205 & 77/059,214
`
`Dear Sir or Madam:
`
`Pursuant to TBMP 703.01 et seq. enclosed please find the original certified testimony deposition of Dr.
`Ronald Butters (with Exhibits) taken on September 30, 2009 to be filed in Opposition No. 91178668.
`
`Thank you for your time and attention to this matter. Please call if you have any questions.
`
`Very truly yours,
`
`/%”\
`
`Matthew H. Swyers
`
`Enclosures
`
`cc: Jeff Morgan, Esq.
`/mhs/
`
`
`
`l.‘ 5 Patent
`
`10-26-2009
`:« T*1Dm:/TM Mail Qcpi. Ct
`
`:33
`
`3
`
`
`
`7 yersLAW FIRM
`
`
`344 Maple Avenue West, Suite 389
`Vienna, VA 22180
`
`Tel. (866) 455-8800
`Fax (270) 477-4574
`
`SwyersLaw.com
`
`Writer's Direct: (866)455-8800 x704
`Writer's Direct Facsimile: (270)477-4574
`ms
`ers Sw ersLaw.com
`
`October 24, 2009
`
`VIA CERTIFIED MAIL
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`Trademark Trial and Appeal Board
`P.O. Box 1451
`
`Alexandria, VA 22313-1451
`
`RE:
`
`Research in Motion vs. Defining Presence Marketing Group, Inc. et al.
`
`Trademark Trial and Appeal Board
`
`Opposition Proceeding No.2 91178668
`Mark(S): CRACKBERRY
`Serial Nos.: 77/059,205 & 77/059,214
`
`Dear Sir or Madam:
`
`Pursuant to TBMP 703.01 et seq. enclosed please find the original certified testimony deposition of Dr.
`Ronald Butters (with Exhibits) taken on September 30, 2009 to be filed in Opposition No. 91178668.
`
`Thank you for your time and attention to this matter. Please call if you have any questions.
`
`Very truly yours,
`
`/%”\
`
`Matthew H. Swyers
`
`Enclosures
`
`cc: Jeff Morgan, Esq.
`/mhs/
`
`
`
`l.‘ 5 Patent
`
`10-26-2009
`:« T*1Dm:/TM Mail Qcpi. Ct
`
`:33
`
`3
`
`
`
`mm
`
`IN THE UNITED STATES PATENT AND TRADEMARK Urrum.
`
`The Trademark Trial and Appeal Board
`
`In the matter of Trademark Application Serial No. 77/059,205
`For the mark CRACKBERRY,
`
`In the matter of Trademark Application Serial No. 77/059,214
`For the mark CRACKBERRY,
`
`Research in Motion, Limited,
`
`Opposer,
`
`vs.
`
`Defining Presence Marketing Group, Inc., et al.
`
`Applicants.
`
`Opposition No. 91 178668
`
`NOTICE OF FILING CERTIFIED TRANSCRIPT - RONALD BUTTERS, PH,D.
`
`COME NOW Applicants Defining Presence Marketing Group, Inc. and Axel Ltd Co, and
`
`pursuant to 37. C.F.R. § 2.123(F) and TBMP § 703.0l(k), hereby provide notice of the filing of
`
`the certified transcript of Dr. Ronald Butters’ trial testimony with exhibits with the Board taken
`
`on or about September 30, 2009.
`
`A copy of the certified transcript, exhibits, along with Dr. Butters’ certification and errata
`
`sheet are being forwarded to the Board via Certified Mail this 24"‘ day of October, 2009. As
`
`required by the rules, a copy of this notice along with copies of the transcript, exhibits,
`
`certification and errata sheet are also being forwarded to all counsel of record.
`
`DATED this 24"‘ day of October, 2009.
`
`
`
`
`
`THE SWYERS LAW FIRM, PLLC
`
`/Matthew H. Smers/
`Matthew H. Swyers, Esquire
`344 Maple Avenue West, Suite 389
`Vienna, VA 22180
`Telephone (866) 455-8800 x 704
`Facsimile (270) 477-4574
`mswyers@SwyersLaw.c0m
`Attorney for Applicants
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`The Trademark Trial and Appeal Board
`
`In the matter of Trademark Application Serial No. 77/059,205
`For the mark CRACKBERRY,
`
`In the matter of Trademark Application Serial No. 77/059,214
`For the mark CRACKBERRY,
`
`Research in Motion, Limited,
`
`Opposer,
`
`VS.
`
`Opposition No. 91 178668
`
`Defining Presence Marketing Group, Inc., et al.
`
`Applicants.
`
`CERTIFICATE OF SERVICE
`
`I HEREBY CERTIFY that I caused a copy of the foregoing pleading and attachments
`
`therewith this 24"‘ day of October, 2009, to be served, via first class mail, postage prepaid, upon:
`
`Jeff Morgan, Esq.
`Novak Druce & Quigg, LLP
`1000 Louisiana Street
`
`Fifty-Third Floor
`Houston, Texas 77002
`
`/Matthew H. Syyers/
`Matthew H. Swyers
`
`
`
`
`
`
`
`.'.L-_I:V_._1.If
`
`Ronald Butters, Ph.D.
`Research in Motion, Limited v. Defining Presence Marketing Group, et al.
`
`September 30, 2009
`91178668
`
`Page 68 -U»
`
`SIGNATURE
`
`I HAVE READ THE FOREGOING_ PAGES WHICH CONTAIN A TRUE
`AND CORRECT TRANSCRIPTION OF THE ANSWERS PROVIDED TO THE
`QUESTIONS HEREIN RECORDED AND I DO NOT DESIRE TO MAKE ANY
`CHANGES.
`—
`
`X I HAVE READ THE FOREGOING PAGES AND WISH TO
`INCORPORATE THE CHANGES THAT ARE DELINEATED ON THE ERRATA
`SHEET TO MY DEPOSITION.
`
`DATE: m"U‘0Cf
`
`RONALD BUTTERS, Ph . D .
`
`I,
`
`SC»/, NOTARY PUBLIC FOR THE
`, STATE OF i\b(“L\>\.
`fiOUNTY OF
`fbhflfl.
`, DO HEREBY CERTIFY:
`THAT THE HEREINABOVE NAMED PERSOEALLY APPEARED
`DAY OF
`bfr
`, 2009, AND
`BEFORE ME THIS THE
`
`THAT I PERSONALLY WITNESSED THE EXECUTION OF THIS
`
`DOCUMENT FOR THE INTENTS AND PURPOSES HEREINABOVE
`
`DESCRIBED .
`
`A C. Wm .._
`
`9
`ST
`-‘ OF NORTH cAROLI§9
`
`
`My Commission Expires: 8 m
`
`
`PUBLIC FOR THE
`
`NOT
`
`5813 Shawood Drive
`
`VIVIAN TILLEY & ASSOCIATES
`
`ctrptr4u@ao|.com
`
`Raleigh, NC 27609
`
`E,
` ‘
`‘
`
`tel: 919.847.578
`fax: 919.847.2265
`a413b3a4-0079-4179-990e-d3e99afl472f
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`
`
`Ronald Butters, Ph.D.
`Research in Motion, Limited v. Defining Presence Marketing Group, et al.
`
`September 30, 2009
`91178668
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`THE TRADEMARK TRIAL AND APPEAL BOARD
`
`OPPOSITION NO. 91178668
`
`RESEARCH IN MOTION, LIMITED,
`
`I
`
`
`
`-.v.1v..;.~,;‘-2'--"x~.‘«;".«v-:~,v.-:-«.,»
`
`
`
`
`
`
`
`vs.
`
`Opposer,
`
`DEFINING PRESENCE MARKETING
`
`GROUP,
`
`INC., et al.,
`
`Applicants.
`
`DEPOSITION OF RONALD BUTTERS, Ph.D.
`
`OFFICE SUITES PLUS
`
`2500 REGENCY PARKWAY
`
`CARY, NORTH CAROLINA
`
`WEDNESDAY, SEPTEMBER 30, 2009
`1:20 P.M.
`
`PAGES 1 THROUGH 70
`
`
`
`
`
`,-ux«~.n.~;:-.;x2:‘mMW}"_':..{:113x.as:;-4,...2-v-.mwv'2';
`
`
`
`
`
`5313 Shawood Drive
`
`Raleigh, NC 27509
`
`VIVIAN 'I'ILLEY & ASSOCIATES
`
`ctrptr4u@aoI.com
`
`tel: 919.847.578
`fax: 919.847.2265
`a413b3a4-0079-4179-990e-d3e99ai7472f
`
`
`
`
`
`Ronald Butters, Ph.D.
`Research in Motion, Limited v. Defining Presence Marketing Group, et al.
`
`September 30, 2009
`91178668
`
`ATTORNEYS OF RECORD PRESENT
`
`MATTHEW H. SWYERS
`
`Attorney for Applicants
`The Swyers Law Firm, P.L.L.C.
`Office Suites Plus
`
`2500 Regency Parkway
`Cary, North Carolina
`27518
`(866) 455-8800
`
`(270) 477-4574 (fax)
`
`mswyers@SwyersLaw.com
`
`WILLIAM R. TOWNS
`
`JEFFREY MORGAN
`
`Attorney for Opposer
`Novak Druce & Quigg, L.L.P.
`1000 Louisiana Street, 53rd Floor
`
`Houston, Texas
`
`77002
`
`(713) 571-3400
`
`(713) 456-2836 (fax)
`bill.towns@novakdruce.com
`
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`5813
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`
`VIVIAN TILLEY & ASSOCIATES
`ctrptr4u@ao|.com
`
`tel: 919347.573
`fax: 919.847.2265
`a413b3a4-0079~41794990e-d3e99af7472f
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`Ronald Butters, Ph.D.
`Research in Motion, Limited v. Defining Presence Marketing Group, et al.
`
`September 30, 2009
`91178668
`
`REPORTER'S NOTE: This transcript may contain quoted
`material.
`If so, such material is reproduced as read
`or spoken.
`
`EXAMINATION
`
`DIRECT - by Mr. Swyers
`
`CROSS
`
`— by Mr. Towns
`
`REDIRECT — by Mr. Swyers
`
`ADJOURNMENT
`
`REPORTER CERTIFICATE
`
`NUMBER
`
`[1]
`
`[2]
`
`[3]
`
`[4]
`
`E X H I B I T S
`
`Notice of Testimonial
`Deposition of Ronald
`Butters, Ph.D.
`
`Curriculum Vitae
`
`Printout of web pages
`
`Declaration and Report of
`Ronald R. Butters, Ph.D.
`
`IDENTIFIED
`
`5
`
`5813 Shjiwoqd Drive
`Raleigh, NC 27609
`
`VIVIAN TILLEY & ASSOCIATES
`ctrptr4u@aol.com
`
`tel: 919.847.578
`fax: 919.847.2265
`a413b3a4-0079-4179-990e-d3e99af7472f
`
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`
`Ronald Butters, Ph.D.
`Research in Motion, Limited v. Defining Presence Marketing Group, et al.
`
`September 30, 2009
`91178668
`
`P R O C E E D I N G S
`
`Whereupon Ronald Butters, Ph.D., was called as
`
`a witness, duly affirmed, and testified as
`
`
`
`-mrr'Hr'ii¢azMé»rEi%:6<‘*:v»u»>v,ui::'>~:1«kz\I»m;::x«»=sv>::“:‘.2=x’
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`“
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`
`5
`
`follows:
`
`Direct Examination
`
`by Mr. Swyers:
`
`Good morning.
`
`Good afternoon.
`
`Or good afternoon.
`
`Thank you.
`
`Good afternoon.
`
`Q.
`
`Can you please state your name and address for
`
`the record?
`A.
`Ronald Butters, 612 Millspring,
`
`M-i-1-1-s-p-r—i-n-g, Drive in Durham, North Carolina.
`
`The zip is 27705.
`
`Q.
`
`Dr. Butters,
`
`I'm handing you what has been
`
`titled the Notice of Testimonial Deposition of Ronald
`
`Butters, Ph.D. Have you seen this document?
`
`A.
`
`Q.
`
`Yes, I have.
`
`And would it be accurate for me to say that is
`
`the notice that has brought you here today?
`
`A.
`
`Yes, sir.
`
`MR. SWYERS: Okay.
`
`Can I enter that
`
`in as 1, please?
`
`MR. TOWNS:
`
`Sure.
`
`5813 Shawood Drive
`Raleigh, NC 27609
`
`VIVIAN TILLEY & ASSOCIATES
`ctrptr4u@ao|.com
`
`tel: 919.847.578
`fax: 919.847.2265
`a413b3a4-0079-4179-990e~d3e99af7472f
`
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`
`
`Ronald Butters, Ph.D.
`Research in Motion, Limited v. Defining Presence Marketing Group, et al.
`
`September 30, 2009
`91178668
`
`0I)\lO\(J'1obU)l\-J}-‘
`
`MR. SWYERS:
`
`Thank you.
`
`[Deposition Exhibit No.
`
`l Marked]
`
`MR. SWYERS; Prior to the deposition
`
`commencing, counsel of record have had an off the
`
`record discussion concerning Dr.
`
`Butters,
`
`and we
`
`have stipulated that his testimony will be received
`
`by the TTAB as an expert in the fields of
`
`linquist —— excuse me —— English linguistics,
`
`contemporary American English and words and their
`
`meanings, and the etymology of words.
`
`Does that accurately state the
`
`stipulation?
`
`MR. TOWNS: That is accurate.
`
`MR. SWYERS:
`
`Thank you. And further
`
`in conjunction with that stipulation, we have agreed
`
`that his curriculum vitae will be entered as Exhibit
`
`2.
`
`MR. TOWNS: That is also accurate.
`
`[Deposition Exhibit No.
`
`2 Marked]
`
`Q.
`
`Dr. Butters, can you tell us —— what is the
`
`field of linguistics?
`
`A.
`
`Linguistics is the scientific study of human
`
`language in all its forms and manifestations.
`
`Q.
`
`What does that involve?
`
`A. Well, you can divide it up into -- you
`
`Drive
`5813
`Raleigh, NC 27509
`
`VIVIAN TILLEY & ASSOCIATES
`
`ctrptr4u@ao|.com
`
`tel: 919.847.578
`fax: 919.847.2265
`a413b3a4-0079-4179-990e-d3e99af7472f
`
`W .
`
`_
`
`1.
`
`,
`
`.
`
`or
`
`
`
`Ronald Butters, Ph.D.
`Research in Motion, Limited v. Defining Presence Marketing Group, et al.
`
`September 30, 2009
`91178668
`
`
`
`divide the field up several different ways.
`
`There is -- there's a kind of linguistics
`
`that's called historical linguistics, and that pretty
`
`much studies the history of —- of -- of individual
`
`languages and the relationships to each other.
`
`The —- the other brand or the other kind is
`
`called synchronic, s-y-n—c-h-r—o-n-i-c, synchronic
`
`linguistics, and that studies language at -- a language
`
`at any particular moment. There are theoretical aspects
`
`to both historical linguistics and synchronic
`
`linguistics, and they obviously overlap.
`
`The other way of dividing up the field of
`
`linguistics or another -- a second way,
`
`I guess,
`
`would
`
`have to do with the aspects of language that —- that are
`
`being studied.
`
`There are, for example, people who primarily
`
`study the psychology of language. That is, what is
`
`the -- the nature of language with respect to the —- to
`
`a -- to a human being and the kinds of -- the kinds of
`
`things that differentiate human speech from animal
`
`communication, for example.
`
`The -- the -- it's -- theoretically, it's
`
`possible to imagine all kinds of different sorts of —- of
`
`linguistic systems, but human language has some -- some
`
`peculiar characteristics of -— of -- of its own.
`
`anasmwwnqme
`RmdQnNC2W%9
`
`VIVIAN 1'ILLEY & ASSOCIATES
`
`ctrptr4u@ao|.com
`
`tel: 919.847.578
`fax: 919.847.2265
`a413b3a4-0079-4179-990e-d3e99af7472f
`
`i
`
`
`
`Ronald Butters, Ph.D.
`Research in Motion, Limited v. Defining Presence Marketing Group, et al.
`
`September 30, 2009
`91178668
`
`Page7 E
`
`Sociolinguistics looks at language as a social
`
`phenomenon. That is,
`
`this would include such things
`
`as -- as social differences within -- within a particular
`
`group, class differences, differences in the way
`
`teenagers speak as opposed to adults.
`
`Then another way of dividing up the field would
`
`be to look at the individual aspects of -- of a language.
`
`CO~dO‘\U'|s»D-U)f\)i'-‘
`
`Phonology is the study of the sounds of language.
`
`KO Morphology is the study of the smallest meaningful units
`
`l-‘ C)
`
`in a language.
`
`For example, a word such as "dogs" has two
`
`different aspects to its meaning.
`
`It has the "dog" part,
`
`which -- which is the word "dog," and then it has the "s"
`
`part that's on the end of it. Both of those would be
`
`different morphemes or different morphological aspects of
`
`the -- of that particular word.
`
`Syntax is the way words are put -- put together
`
`in -- in sentences. Lexicography is the science of
`
`dictionary making, and it involves primarily individual
`
`words and the morphemes that are attended thereon, what
`
`kind of works go into dictionaries, how -- what a
`
`dictionary maker would go about, deciding what the
`
`current meanings of the words -— of words are. There's
`
`a -- there's a whole kind of methodology for that.
`
`Then lexicology is the study very closely
`
`S8131 Shawaoci Drive
`Raleigh, NC 27609
`
`’
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`
`tel: 919.847.578
`fax: 919.847.2265
`a413b3a4-0079-4179-990e-d3e99af7472f
`
`
`
`Ronald Butters, Ph.D.
`Research in Motion, Limited v. Defining Presence Marketing Group, et al.
`
`September 30, 2009
`91178668
`
`Page 8 it
`
`
`
`C0-JGsU!42-(..O'l\)I-‘
`
`related to lexicography. Lexicology is -- is related to
`
`the meaning of words and individual -- and individual
`
`words.
`
`If you look at the other aspect of that, we
`
`have what is called semantics. And semantics is the
`
`study of -- of meaning, both word meaning and -- and
`
`sentence meaning.
`
`Q.
`
`Does the field of lexicology also include
`
`etymology of words in a language?
`
`A. Well, etymology would be one aspect of
`
`historical linguistics because in -- in etymology, one is
`
`tracing the history of individual words.
`
`It involves semantics because it also involves
`
`the history of the meanings and the changes of -- of
`
`meanings of words, and -- and it also involves
`
`lexicography, which would be what kinds of things would a
`
`dictionary maker put in a dictionary that has to do with
`
`the -- with the changes of meanings of -- of words.
`
`Q.
`
`And all of this is generally in the field of
`
`linguistics.
`
`A.
`
`Yes.
`
`Q.
`
`Okay. Turning your attention to the case at
`
`hand, can you tell us what we asked you to do?
`
`A. Well, you asked me, first of all,
`
`to -- to look
`
`at the word "crack" in American English and to look at
`
`5813
`Raleigh, NC 27609
`
`VIVIAN 'I'ILLEY & ASSOCIATES
`ctrptr4u@ao|.com
`
`tel: 919847.578
`fax: 919.847.2265
`a413b3a4-0079-4179-990e-d3e99af7472f
`
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`Ronald Butters, Ph.D.
`Research in Motion, Limited v. Defining Presence Marketing Group, et al.
`
`September 30, 2009
`91178668
`
`Page 9
`
`03\IO\U'|oAL;iJl\)i—‘
`
`its -- its history and -- and present meanings in -- in
`
`American English, primarily in -- in the United States.
`
`And then the second aspect has to do with the
`
`meaning relationship in contemporary American English
`
`between the -- the words BlackBerry and the words -- and
`
`the word CrackBerry.
`
`Q.
`
`And how did you go about doing the
`
`task -— doing these tasks? Excuse me.
`
`A.
`
`Yeah. Well,
`
`I -- I used the sort of standard
`
`research methodology of -- of linguistics, particularly
`
`of -- of lexicography and lexicology, and that had to do
`
`with independent research and also looking at -— at
`
`materials that were supplied by -- by counsel.
`
`The -- the methodology here, again -- once
`
`again, is essentially the methodology of lexicography and
`
`lexicology; that is,
`
`the study of words and their
`
`meanings and -- and origins and changes of -- of meaning.
`
`Q.
`
`I'm handing you what has yet to be marked, but
`
`I would ask to be marked, as --
`
`COURT REPORTER: Three.
`
`Q.
`
`-- Exhibit 3, about a,
`
`I don't know, one—inch
`
`stack of materials.
`
`[Deposition Exhibit No.
`
`3 Marked]
`
`Can you identify for us what these are?
`
`These are materials from -- from my file, which
`
`Q.
`
`A.
`
`5813
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`
`Ronald Butters, Ph.D.
`Research in Motion, Limited v. Defining Presence Marketing Group, et al.
`
`September 30, 2009
`91178668
`
`were originally sent me by counsel.
`
`They are primarily Pfiwlog
`
`G)~JOXUTJ3(.10(‘Oi-‘
`
`materials that -- that were captured from the internet by
`
`person or persons unknown and -- unknown to me and -- and
`
`also some journalistic expressions, I believe, of -- in
`
`which "crack" or "CrackBerry" or "BlackBerry"
`
`are -- figure prominently.
`
`Q. What, if any,
`
`independent research did you do
`
`to verify the existence of those documents?
`
`A.
`
`I looked at -- at -- at -- at these -- I looked
`
`at the corresponding web sites to make sure that these
`
`were -- were indeed correct.
`
`Q.
`
`And,
`
`to the best of your information,
`
`these are
`
`true and accurate copies thereof?
`
`A.
`
`Q.
`
`Yes.
`
`And did you rely upon these documents in
`
`formulating the opinions in your report?
`
`A.
`
`Q.
`
`Yes.
`
`Okay.
`
`Now, what,
`
`if anything, did your
`
`research reveal concerning the origins of the actual term
`
`"crack"?
`
`A. Well,
`
`the word "crack" is a very old one
`
`in -- in the English language going back to old English
`
`times. There's an old English verb, cracian, which meant
`
`to make a sharp, dry sound. This was primarily an oral
`
`term.
`
`5313 5IWWOofl;,DI‘iVe
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`
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`
`
`Ronald Butters, Ph.D.
`Research in Motion, Limited v. Defining Presence Marketing Group, et al.
`
`September 30, 2009
`91 178668
`
`K0®\lO\U'|ub(.Ol\)l-‘
`
`The central meaning in present day English
`
`is -- really focuses on that.
`
`It's still an oral.
`
`It
`
`still has to do with -- but it's also been transferred to
`
`a noun so that "crack" has to do with -- I mean, a crack
`
`can he a sound.
`
`It's also been transferred to the visual domain
`
`so that it -- you can also have a crack in a window, or
`
`you can even, somewhat metaphorically, crack a window,
`
`which means not hit it with a ball bat but means just to
`
`t--‘ (D
`
`open it a bit.
`
`So there are -— as the Oxford English
`
`Dictionary tells of sundry transfer meanings and
`
`applications of "crack" in contemporary English that have
`
`to do with -- that -- that ultimately derive from
`
`this -- from this old English word "crack," meaning to
`
`make a sharp, dry sound.
`
`Q.
`
`Did your research indicate any relationship
`
`with the term today, or otherwise, with cocaine?
`
`A. Definitely. This is a term that's been around
`
`now since the mid 1980s at least, and it's a -- it's a
`
`particularly virulent form of -- of cocaine in which it's
`
`my understanding that cocaine is -- it's heated in
`
`conjunction with -- I think it's baking soda, and it
`
`makes crystals or pellets which then are smoked in -- in
`
`what are known as crack pipes.
`
`snssmwnpuome
`Raleigh, NC‘ 27609
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`
`Ronald Butters, Ph.D.
`Research in Motion, Limited v. Defining Presence Marketing Group, et ai.
`
`September 30, 2009
`91178668
`
`Well,
`
`the Oxford English Dictionary defines it
`
`Page 12 T
`
`C0-lO‘\U'|-1>-0Ji\Jl-'
`
`KO
`
`i---‘ C)
`
`as a potent, crystalline form of cocaine made by heating
`
`a mixture of it with baking powder and water, etcetera.
`
`It also classifies it as a kind of
`
`slang -- slang term, although I think it's also
`
`found -- although I -- I have -- I know that it's also
`
`found in some very respectable and journalistic sources
`
`that's -- really you will find it in all but the most
`
`'common -- most -- most formal situations and maybe even
`
`today or these days since it's been around now
`
`since -- well, it probably began in the Bahamas. There's
`
`a good deal of evidence that crack was first imported
`
`into the United States from the Bahamas in the early to
`
`mid 1980s.
`
`And it's not generally known, but I believe
`
`this is -- the results of my inquiries suggests very
`
`strongly that the -- there is a term in -- in the Bahamas
`
`called "crack rock," and it just means gravel. And,
`
`in
`
`fact,
`
`the -- another -- an alternative term for crack
`
`cocaine is also rock cocaine, and that was around very
`
`early on.
`
`I think that they called it originally crack
`
`just because it looked like gravel.
`
`There are alternative suggestions that it makes
`
`a crackling sound while -- while it's being heated with
`
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`
`
`Ronald Butters, Ph.D.
`Research in Motion, Limited v. Defining Presence Marketing Group, et al.
`
`September 30, 2009
`91178668
`
`the baking powder. This seems to be more fanciful
`
`than -- than not.
`
`I've also been told that it crackles when it's
`
`being -- being smoked.
`
`I have not confirmed this
`
`empirically, but this is -- my inquiries have been,
`
`perhaps, considered hearsay, but my -— my inquiries
`
`suggest that it crackles also whenever it's
`
`being -- being cooked --
`
`Q.
`
`A.
`
`Q.
`
`Did your --
`
`-- being smoked.
`
`Did your research indicate that there are any
`
`particular associations with crack —— any particular
`
`associations with crack and how it is viewed by the
`
`public?
`
`A.
`
`Q.
`
`How -- what -- I don't --
`
`You had mentioned that it is a very powerful
`
`form of narcotic. Are there any other associations
`
`generally with crack cocaine?
`
`A.
`
`Q.
`
`(No response)
`
`Did there come a time that your research
`
`indicated that it is generally accepted to be very
`
`addictive?
`
`leading.
`
`A.
`
`My --
`
`MR. TOWNS:
`
`I'll object to that as
`
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`
`
`OO\]ChU'1J>b\)l\)i—-‘AA
`
`Ronald Butters, Ph.D.
`Research in Motion, Limited v. Defining Presence Marketing Group, et al.
`
`September 30, 2009
`91178668
`
`MR. SWYERS:
`
`Just give him a time.
`
`Page 14
`
`A.
`
`My -- my research -- I think what I really want
`
`to say is that it's -- it's -- it's common knowledge that
`
`it's -- that it's a particularly virulent form of —- of
`
`the narcotic and -- and highly addictive, and I do find
`
`strong indications of that in my -— in my research as
`
`well.
`
`Q.
`
`In the scope of your research, did there come a
`
`time that you discovered the term "crack" had developed a
`
`secondary meaning?
`
`A.
`
`Yes.
`
`Perhaps I should explain that within
`
`linguistics, "secondary meaning" does not mean what I
`
`understand it means among the trademark lawyers,
`
`and -- but, rather, what a secondary meaning would mean
`
`to a linguist is an associative -- a strong or closely
`
`associated meaning that takes many of the semantic
`
`features of the original word but —- but ameliorates it
`
`or -- usually ameliorates it somewhat.
`
`So the -- it is,
`
`indeed,
`
`the case that crack,
`
`in informal usage at least, has come to -- to take on
`
`kind of an ameliorated jocular usage that -- in which it
`
`indicates -- in which it's used to characterize or
`
`to -- to indicate any sort of obsession or addiction,
`
`preoccupation, or excessive —- excessive use.
`
`Q.
`
`Does this jocular version appear in any
`
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`I
`
`
`
`Ronald Butters, Ph.D.
`Research in Motion, Limited v. Defining Presence Marketing Group, et al.
`
`September 30, 2009
`91178668
`
`traditional dictionaries that you're aware of?
`
`A.
`
`Not to this date in any that -- in any
`
`traditional dictionaries that -- that I'm aware of.
`
`Q.
`
`A.
`
`Based upon your experience, why not?
`
`Dictionary makers are relatively conservative,
`
`and there -- there are really two -- two factors here.
`
`One is that dictionary makers are relatively
`
`conservative.
`
`They don't tend to put words into
`
`dictionaries until they're sort of certain that they're
`
`going to be -- that they're going to be around for while.
`
`And they -- they don't want to get -- kind of
`
`get egg on their face of having yesterday's slang,
`
`that
`
`people have now forgotten, frozen into -- into their
`
`dictionary.
`
`The second reason is that dictionaries
`
`necessarily move slow -- somewhat slowly because
`
`they -- they have -- there's always a time lag between
`
`the time the research is done and the time that the
`
`dictionary is actually published.
`
`With on-line publications,
`
`this -- this lag
`
`time is -- is becoming somewhat
`
`-— somewhat smaller but
`
`with -- certainly with paper dictionaries. And,
`
`traditionally, dictionary makers just don't get words
`
`into the dictionaries until -- until several years after
`
`they feel fairly certain that it's going to be around for
`
`-Drive
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`
`
`Ronald Butters, Ph.D.
`Research in Motion, Limited v. Defining Presence Marketing Group, et al.
`
`September 30, 2009
`91178668
`
`E
`
`E
`
`E
`
`awhile.
`
`Q. Well, if it doesn't appear in any traditional
`
`dictionaries,
`
`is there a manner by which we can confirm
`
`it does exist?
`
`A.
`
`The -- the methodology that I have used
`
`in -- in preparing for this testimony is essentially the
`
`methodology of -- of dictionary makers. That is, what
`
`one does is -- is looks at contemporary usage and -- and
`
`determines, on the basis of inductive reasoning, how this
`is being used in contemporary -- in contemporary
`
`linguistic use.
`
`Q.
`And many of those such examples are included in
`Exhibit 3 that you have in front of you? That would be
`
`the stack of documents.
`
`A.
`
`Q.
`
`Yes.
`
`Okay. Did you also mention any examples in
`
`your report?
`
`A.
`
`Q.
`
`Yes,
`
`I did.
`
`And if I could refer you to page —- excuse
`
`me -— 7 of your report, paragraph 13,
`
`if you could kindly
`
`take us through some of those examples and explain to us
`
`how these fit in with what you've already testified thus
`
`far.
`
`A. Well, one example is as follows, and this came
`
`from U.S. News and World Report in 1997. This is the
`
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`i
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`§
`
`5813 Shawood Drive
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`
`
`
`
`Ronald Butters, Ph.D.
`Research in Motion, Limited v. Defining Presence Marketing Group, et al.
`
`September 30, 2009
`91178668
`
`sentence.
`
`C‘0\lG‘\U'iubUJI\)i-‘
`
`"Egosurfing is the crack cocaine of the
`
`cognoscenti."
`
`WITNESS:
`
`Do you have the spelling
`
`for "cognoscenti"?
`
`COURT REPORTER:
`
`Thank you. Yes.
`
`A.
`
`"Egosurfing is the crack cocaine of the
`
`cognoscenti, each hit producing yolks of pleasure and
`
`mounting delirium."
`
`This is obviously a lighthearted use of the
`
`term "crack" or even "crack" -- "crack cocaine." This is
`
`an -- an example of that kind of associated or secondary
`
`jocular meaning in which it suggests that people who look
`
`up their names on the internet get sort of addicted to
`
`doing it and probably do it a little bit more than
`
`they -- than -- than they ought to.
`
`Q.
`
`A.
`
`But it's not a negative connotation.
`
`It's not a pejorative connotation.
`
`The -- the
`
`"crack cocaine" itself is -- is a -- it's -- it's
`
`lighthearted.
`
`It's jocular, it's jocose, if you will.
`
`Q.
`
`A.
`
`How about "crib candy"?
`
`Uh-huh. This is one of my favorite examples.
`
`It comes from a web site -- a web site, excuse me, which
`
`is a blog advertisement for the on-line home furnishing
`
`store, Crib Candy. And it's particularly salient, I
`
`5813 Shawood Drive
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`
`
`Ronald Butters, Ph.D.
`Research in Motion, Limited v. Defining Presence Marketing Group, et al.
`
`September 30, 2009
`91178668
`
`OD\lO\U'|ol>LOl\)i-‘
`
`think -- well, let me read it first.
`
`It says,
`
`"Crib Candy,
`
`it's like crack for
`
`decorators.
`
`If you're a shop-a-holic, we are going to
`
`warn you not to click the link."
`
`Now, this is —— this is useful in several
`
`different ways. One, it uses the -- the morpheme
`
`"a~ho1ic," which comes from "alcoholic." And being an
`
`alcoholic or having an alcoholic disease is certainly not
`
`a pleasant thing.
`
`It's -- it's also an obsession
`
`or -- or an addiction.
`
`It's really -- but -- but when you_attach it to
`
`something like shop-a-holic, it becomes a kind of
`
`lighthearted,
`
`jocular use of -- of the term. And
`
`the -- and the use of "crack" here is —- is exactly
`
`parallel to that.
`
`It's just a generation younger.
`
`But I
`
`think that the two are —- are very much —- very much
`
`alike.
`
`But the -- the other reason that I find this
`
`particularly salient is that this is a web site,
`
`cribcandy, that uses the term
`
`"crack" in self-reference.
`
`'It's saying,
`
`"You know, if you come to our web site and
`
`look at our stuff, you're going to find out stuff is so
`
`attractive that you're going to keep coming back to us
`
`all the time.
`
`It's -- our stuff is like crack for
`
`decorators."
`
`fin3SmwwpdDmm
`Rmd¢yNC2flw9
`
`VIVIAN TILLEY & ASSOCIATES
`
`ctrptr4u@aol.com
`
`tel: 919347.578
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`
`.
`
`..._
`
`,
`
`i.
`
`
`
`Ronald Butters, Ph.D.
`Research in Motion, Limited v. Defining Presence Marketing Group, et al.
`
`September 30, 2009
`91178668
`
`Well, this is a —- is a very lighthearted,
`
`jocular, humorous, but powerful usage.
`
` How about the next one that deals with Diet
`Q.
`
`Vanilla Coke and crack?
`
`
`
`
`A. Well, again,
`
`
`this is a -- this is a young man
`
`
`
`
`
`",7-‘Pr'-,<,.rw;_‘~......\.s.5.,..,-
`
`
`
`who's talking -- or woman.
`
` I'm not sure why I thought
`
` that was a young man. It comes from -- from somebody's
`
`
`blog web site, I think, and he's talking about drinking
` Diet Vanilla Coke and watching and playing, I think,
`
`the
`
`video game Street Fighter.
`
` And he says, "So I wouldn't have to get up
`
`again for at least half a day,
`
`I grabbed a 2-liter bottle
`
`of Diet Vanilla Coke -- it's like crack -- and settled
`
`into the world of the Street Fighter."
`
`And it's not that they're confessing to any
`
`kind of serious psychological problems, but he is saying,
`
`"I really, really like Street Fighter, and I really,
` really like Diet Vanilla Coke.
`I drink so much of it
`that you -- you almost could say I'm addicted to it."
`
`But, again, it's a humorous,
`
`jocular kind
`
`19
`
`20
`
` of -- kind of reference.
`Q.
` And the next one, which would be -— many people
`
`may get the Sudoku reference.
`
`
`
`24
`
`A.
`
`Sudoku, this comes from -- from another on—line
`
`
`web site where someone‘s describing Sudoku, and
`
`
`
`.
`
`...,¢_.,., ,
`
`.,.
`
`.
`
`.,
`
`.
`
`_
`
`5813~5hawoodi Drive
`Raieigh, NC 27609
`
`
`
`VIVIAN TILLEY & ASSOCIATES
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`
`
`
`Ronald Butters, Ph.D.
`Research in Motion, Limited v. Defining Presence Marketing Group, et al.
`
`September 30, 2009
`91178668
`
`Page 20
`
`they -- the -- the headline is "Sudoku,
`
`the new crack?
`
`It's been years since we've had a puzzle game that's
`
`addictive.
`
`Sudoku fever is sweeping the world, and we
`
`take a look at what makes this game so addictive."
`
`Again, this is a -- this is -- is an example of
`
`the secondary meaning of -- of the related associated
`
`meaning of -- of "crack," and it's again being used in
`
`this -- this lighthearted,
`
`jocular way.
`
`Q.
`
`And most of these it appears it's —— are
`
`speaking of a jocular reference to addiction. Would you
`
`1 2 3 4
`
`5 6 7 8
`
`agree with me?
`
`A.
`
`Q.
`
`Yes.
`
`We have even the multi-national McDonald's here
`
`in one of these references.
`
`Can you take us through that
`
`one?
`
`A.
`
`Yeah.
`
`The -- this is someone telling us
`
`that -- that he or she likes McDonald's iced coffee.
`
`"It's so good that it's the new crack. Have you tried
`
`this stuff?
`
`I'm hooked on the hazelnut, and I can't
`
`shake it. Get this monkey off my back.
`
`I think it's
`
`precisely the sugar bug that -- buzz that makes it
`
`so -- so addictive."
`
`The same comment here,
`
`I think. This
`
`is -- this is the -- the associated or secondary meaning
`
`of -- of "crack," and —- and, again, it's used in a -- a
`
`Drive
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`
`
`
`
`Ronald Butters, Ph.D.
`Research in Motion, Limited v. Defining Presence Marketing Group, et al.
`
`September 30, 2009
`91178668
`
`self-referential,
`
`lighthearted way, as a way -- really,
`
`almost a -- as a way, really, of praising McDonald's iced
`
`coffee.
`
`They're saying, you know, "I like ice -- this
`
`iced coffee so much that I'm going to describe it in
`
`terms of this hyperbolic or exaggerated sense of -- of
`
`addiction."
`
`w\lO‘s(J1obL4)f*0i-‘TM
`
`Q.
`
`And well,
`
`I guess,
`
`the next one —- we only have
`
`two left here that are mentioned in your report, our good
`
`i
`
`friends at Disney and Dr. Seuss.
`
`A.
`
`Yes. This one,
`
`the last sentence of it is,
`
`"It's Dr. Seuss meets Disney on crack," Clarey says
`
`laughing. Well, he's laughi
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