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This is the full deposition taken by MGA's lawyer, Larry McFarland. The only changes made to this document were to add the word "Page" before the page number along the left side.
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1 THE UNITED STATES DISTRICT COURT
2 FOR THE DISTRICT OF COLORADO
3 CIVIL ACTION NO. 03-D-2512(PAC)
4 -----------------------------------------------
5 DEPOSITION OF KAREN DUDNIKOV
EXAMINATION DATE: OCTOBER 15, 2004
6 -------------------------------------------------
7 KAREN DUDNIKOV, MICHAEL MEADORS,
8 Pro Se Plaintiffs,
9 vs.
10 MGA ENTERTAINMENT, INC., a California corporation,
11 Defendant.
12 --------------------------------------------------
13
14 PURSUANT TO NOTICE, the deposition of
KAREN DUDNIKOV, was taken at 10:15 a.m., on October
15 15, 2004, at 1855 Aeroplaza Drive, Colorado Springs,
Colorado 80302, before Dawn K. Larson, Registered
16 Professional Reporter and Notary Public in and for
the State of Colorado.
17
18
19
20 Dawn K. Larson
Registered Professional Reporter
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1 A P P E A R A N C E S
2 For the Pro Se Plaintiffs:
3 KAREN DUDNIKOV
MICHAEL MEADORS
4 P.O. Box 87
3463 Maskoke Trail
5 Hartsel, Colorado 80449
(303)913-6075
6
7 For the Defendant:
8 LARRY W. McFARLAND, ESQ.
Keats McFarland & Wilson LLP
9 9720 Wilshire Boulevard,
Penthouse Suite
10 Beverly Hills, California 90212
(313)248-3830
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1 I N D E X
2 EXAMINATION BY: PAGE
3 Mr. McFarland 4
4
5 I N D E X O F E X H I B I T S
6
7 DEPOSITION PAGE FIRST
EXHIBIT NO. DESCRIPTION APPEARS
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9 8 4-6-04 postings as tabberone 27
one-page document
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9 8-13-04 postings as tabberone 29
11 one-page document
12 10 1-15-04 posting as tabberone 31
one-page document
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11 7-5-04 postings as tabberone 32
14 one-page document
15 12 online search results 54
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1 P R O C E E D I N G S
2 KAREN DUDNIKOV,
3 having been duly sworn to state the whole truth,
4 testified as follows:
5 EXAMINATION
6 BY MR. McFARLAND:
7 Q. Will you please state your name
8 for the record and spell it?
9 A. Karen Dudnikov, D-U-D-N-I-K-O-V,
10 like Victor.
11 Q. Okay.
12 A. Can I do one thing right before
13 we start?
14 Q. Sure.
15 A. All right. Not waiving any
16 confidentiality, we have reviewed our settlement
17 agreements that are confidential. They both
18 require written permission.
19 Q. Okay.
20 A. Now, I can contact them and ask.
21 Based on my past dealings with both of these
22 firms, they will ignore me if there is nothing in
23 it for them. I think it may be better if I give
24 you the contact information and you contact them.
25 The only thing I would ask is I get copied in on
Page 5
1 any correspondence, but I think if I contact
2 them, they will just do what they have done in
3 the past.
4 Q. That's fine. We're talking about
5 the Mars agreement?
6 A. Mars agreement and Shabby Chic.
7 Q. Okay.
8 A. I will give you the contact
9 information for both of them. I can email it to
10 you and Mr. Caplan.
11 Q. Do you have that with you?
12 A. No, I don't.
13 Q. Email it to me. That's perfect.
14 We'll do that and we'll copy you in on the letter
15 and letting you know that we discussed it and
16 you're fine with it.
17 A. We're fine with it.
18 MR. MEADORS: It's their call.
19 They're the ones that insisted on the
20 confidentiality.
21 Q. (BY MR. McFARLAND) Okay. And
22 I assume you'd be willing to enter into some kind
23 of protective order and that we can only use it
24 in litigation.
25 MR. MEADORS: That's fine.
Page 6
1 Q. (BY MR. McFARLAND) Normally,
2 just so you know, that is the concern. That is
3 normally the concern that people have is they
4 don't want their document being put into the
5 press. You know what I'm saying? They don't
6 want it being released. So, in other words, they
7 have confidentiality for you as long as we're
8 willing to keep it confidential, generally
9 speaking, that's all, but I'll discuss it with
10 them.
11 A. That's fine.
12 Q. We're all willing to keep it
13 confidential.
14 A. Post it on the website. I don't
15 care.
16 Q. I don't think they would like
17 that, and I don't see why we would do that. We
18 won't do that. Okay. So, Ms. Dudnikov, you were
19 here yesterday, correct?
20 A. Yes, I was.
21 Q. So I want to go over with you
22 again just really quickly some of the rules.
23 A. Uh-huh.
24 Q. The typing is not going to --
25 A. I actually -- when it comes to
Page 7
1 questions, I'm a visual learner. I'm a visual
2 person, and to just hear a question, I don't
3 always understand it. I have to see it.
4 Q. Okay. You can do what you want.
5 It seems like -- it would confuse me, but you can
6 do what you want. All right. So the first thing
7 is, as I told Mr. Meadors yesterday, although
8 this is an informal setting, it is as though you
9 were testifying in court. You understand you're
10 under oath, and you understand you have to
11 testify truthfully, correct?
12 A. Yes, I do.
13 Q. Also, one of the admonitions, one
14 of the things that is important to think about is
15 that -- don't guess. In other words, when I ask
16 you a question, if you could estimate, then I
17 would like you to estimate but don't guess. Let
18 me give you an example. For example, if I ask
19 you to estimate the length of this table, more
20 than likely you could estimate it. You might say
21 it is 15 feet, 20 feet. You're not sure, but
22 something like that. That's an estimate. If I
23 ask you to tell me how long the table was in the
24 room down the hall that you hadn't been into, and
25 you told me, you guessed that it was the same
Page 8
1 table as this, that would be a guess.
2 A. Okay.
3 Q. I don't want you to guess. Do
4 you see the difference?
5 A. Yes, I do.
6 Q. Okay. As I mentioned yesterday
7 to Mr. Meadors, the court reporter is going to
8 take down everything that we say. We're going to
9 then provide the original transcript to you for
10 your review. You can make corrections on the
11 transcript. However, we at trial can question
12 you or comment about any of those corrections.
13 So the most important thing today to make sure
14 that you understand my question, and you answer
15 clearly, and we get a good record. Do you
16 understand that?
17 A. Yes, I do.
18 Q. The other thing, too, is
19 Mr. Meadors did a good job yesterday. It is hard
20 because I know half the time you're going to know
21 what I'm going to ask, and you just want to go
22 ahead and answer. It Is such a normal thing to
23 do, but with the court reporter, is it very
24 important for us not to do that. So please let
25 me finish my question even though you're probably
Page 9
1 going to be right about what I'm asking, and I'll
2 let you finish your answer so the court reporter
3 can get a good record. Is that okay?
4 A. Yes, it is.
5 Q. Any breaks, of course, anytime
6 you wanted to take a break, not a problem. Is
7 there any medical reason you can't give your
8 best, truthful testimony here today?
9 A. No, there is not.
10 Q. Are you on any medication that
11 would affect your ability to testify truthfully
12 and accurately?
13 A. No, I am not.
14 Q. Did you review any documents in
15 preparation for your deposition today?
16 A. Yes, I did.
17 Q. What did you review?
18 A. I reviewed the Nolo Book on
19 Depositions, whatever came up when I plugged in
20 deposition plus procedure into AltaVista.
21 Several law firm websites come up with preparing
22 their clients for a deposition. I actually read
23 some depositions that were posted online because
24 there is some rather high profile ones that are
25 out there, which being nosy, I just had to sit
Page 10
1 there and plow all the way through just because I
2 got caught up in what was going on.
3 Q. All right. Okay. Anything else?
4 A. That's all that comes to mind.
5 Q. Did you review the Mars or Shabby
6 Chic agreement?
7 A. Oh, yes, I did. I reviewed the
8 Mars one. The Shabby Chic one is more familiar
9 in my mind since it is newer. The Mars agreement
10 is two years old at this point and had gone
11 through many permutations, and I wanted to go and
12 read the very recent one.
13 Q. Did you bring the Bratz hat with
14 you?
15 A. Yes, I did.
16 Q. Okay. We'll get to that. I just
17 wanted to make sure it is here. Okay. Have you
18 ever been a defendant in a lawsuit?
19 A. Yes.
20 Q. Okay. How many times?
21 A. Can we put a timeline?
22 Q. Let's say the last five years.
23 A. Okay.
24 Q. And I don't care about your --
25 A. You don't care about our builder?
Page 11
1 Q. You were in the same litigation
2 with Mr. Meadors regarding the builder?
3 A. Yes. There was one other case
4 which he forgot to mention which is when they
5 sued us for the website we put up about them.
6 Q. Oh, tell me about that.
7 A. We put up a website called
8 www.northstarsucks.com. We had gone to the
9 building departments, found other people who had
10 building permits pulled by that contractor,
11 contacted them, put an ad in the paper, and
12 probably had at least 20 people who had been
13 cheated by this builder. She had a pattern of
14 how she did it, and we got everybody's stories
15 and compiled into this is how they do it.
16 Q. She being Northstar?
17 A. Barbara Robbins, yes. Barbara
18 Robbins was Northstar. The website was not
19 complimentary in the least to her company. It
20 was not complimentary in the least to her. She
21 took offense on the website when we called her
22 peanut butter legs. That's an East Coast
23 expression I brought west with me when I came.
24 Peanut butter legs means easy to spread. She
25 took us to court. The lower court, district
Page 12
1 court in Fairplay ruled that the website was
2 obscene because of that. We took it to the
3 Colorado Court of Appeals, and the Colorado Court
4 of Appeals agreed with us that while "peanut
5 butter legs" may be crude and tasteless, it is
6 not obscene, and that they deemed our website to
7 be protected speech. She is now out of business
8 just as an aside.
9 Q. Okay. Any other cases besides
10 that one and the two that Mr. Meadors mentioned
11 yesterday in which you have been --
12 A. It was Northstar and that was
13 Mars. Defendant -- not that I remember. I would
14 think I would recall. I don't remember anything
15 else.
16 Q. And, again, you were here
17 yesterday so we can do this two ways. I mean,
18 you can list for me the cases in which you have
19 been a plaintiff, or if you have your notes and
20 you recall if Mr. Meadors missed any, either way
21 is fine with me. I certainly have all the ones
22 that Mr. Meadors remembered yesterday. It might
23 be more efficient if we just fill in any
24 additional litigation, if he missed any. He may
25 not have.
Page 13
1 A. Okay. Litigation.
2 Q. Can you run through them briefly?
3 I see you're taking notes. Just go ahead and jot
4 them down.
5 A. I'm writing then down so I can
6 count. I know how much we have had.
7 Q. We can run through them quickly
8 and see if it matches.
9 A. Okay.
10 Q. All right.
11 A. I have 14.
12 Q. 14. Why don't you list them real
13 quick to make sure we're accurate?
14 A. Mars, Disney, Major League
15 Baseball Properties, United Media, Shabby Chic,
16 Wiggles, MGA, Vittoria North America, Allied,
17 Fleurville, Debbie Mumm, Weight Watchers, United
18 Media and Sanrio.
19 Q. You listed United Media twice.
20 A. I did that. That's why my count
21 came out right. I'm still missing one then.
22 Q. I think you listed United Media
23 fourth, didn't she?
24 A. Yeah, I listed that second to
25 last. I didn't see that. So I am missing one of
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1 them. Oh, E!.
2 Q. E!. There we go. So the right
3 number is 14?
4 A. I believe so, yes.
5 Q. Okay.
6 (Discussion off the record.)
7 Q. Also, let's go over briefly your
8 educational background, Ms. Dudnikov.
9 A. Okay. Graduated from high school
10 in 1974. I did two years at UMBC. I did some --
11 Q. You told me that was what?
12 A. University of Maryland, Baltimore
13 County campus.
14 Q. Okay.
15 A. I did some time -- boy, that
16 sounds like jail. Never mind. I did some
17 classes at NOVA, which is Northern Virginia
18 Community College. I attended National Louis
19 University and got a bachelor's in business.
20 Q. Okay. Anything else?
21 A. General classes, computer
22 classes, training on programs, work-related
23 things. I was a computer consultant for awhile.
24 They sent me to a number of classes so I could
25 actually know what I was consulting on. That
Page 15
1 would be it.
2 Q. No classes in, for example, law?
3 A. Just as part of the business
4 degree, I took business law.
5 Q. Okay. But not other than that?
6 A. No.
7 Q. Okay. What emails, email names
8 have you used, let's say, in the last four years?
9 A. Okay. The ones I've used and not
10 extra ones that he left off?
11 Q. We'll get to that. Ultimately I
12 want all the ones you have used, you have used
13 for the company, that maybe Mr. Meadors forgot.
14 A. Okay. I use Karen@tabberone.com.
15 Q. Okay.
16 A. I use tabberone@at hotmail.com.
17 I use tabberone@yahoo.com. I use tabberone
18 spelled out @Juno, the word completely spelled
19 out, and then tabber1@Juno. I use
20 karen@meadnikov-webdesign.com.
21 Q. Bendikov? Can you spell that for
22 us?
23 A. Meadnikov, M-E-A-D-N-I-K-O-V dash
24 webdesign.com. I use Ashweller2003@yahoo.com.
25 PauleBayseller@hotmail.com. That would be it for
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1 me. Oh, blueiscool@Juno. That, I believe, is
2 for me.
3 Q. Okay. What about for --
4 A. For Mike, what I believe he
5 missed yesterday -- I believe he missed
6 MikeMeadors1@yahoo. I believe he got the Juno
7 account, the Hotmail account, Meadnikov and
8 Tabber. I know the MikeMeadnikov1@yahoo.com.
9 Q. Can you spell Meadnikov again for
10 me?
11 A. M-E-A-D --
12 Q. M-E-A-D --
13 A. Uh-huh. N-I-K-O-V. It will help
14 if you remember it's a combination of both of our
15 last names. Meadnikov. The first few letters of
16 his and last of mine.
17 Q. Does Mr. Meadors use any
18 Meadnikov email names?
19 A. He didn't give you
20 Mike@Meadnikov-webdesign yesterday?
21 Q. Might have. Okay. Do all of
22 Mr. Meadors' email address have either the name
23 Mike or Mike Meadors in them?
24 A. As far as I know, yes.
25 Q. Okay. And yours either have
Page 17
1 Karen, tabberone, Ashley Weller, PauleBay or
2 blueiscool. Are there any other names that are
3 used?
4 A. Not that I can think of. That's
5 enough passwords for me.
6 Q. What about for the company? Are
7 there any different ones that will be used on
8 behalf of the company, tabberone or any other
9 company you're involved with, or is that it?
10 A. We use order@tabberone.com, but
11 nobody ever uses it. We just get spam mail in
12 there, and there probably is -- there might be
13 something like webmaster@tabberone.com. There is
14 just some general canned emails that come with --
15 the emails for tabberone and Meadnikov came with
16 the website package, but there may be some that
17 are there that we're not even aware of.
18 Q. Okay. So I'll go back to your
19 email, emails that you've used.
20 Karen@tabberone.com, how long have you used that
21 one?
22 A. I'm thinking 2003.
23 Q. And tabberone@hotmail.com?
24 A. I'm thinking 2000 -- no. 2000,
25 the end of 2000.
Page 18
1 Q. Now, I should have asked. Let me
2 go back. Karen@tabberone.com, is that the email
3 one that you still use?
4 A. That is my main email account.
5 Q. So that is still in use?
6 A. Yes.
7 Q. Okay. Tabberone@hotmail.com, is
8 that still in use?
9 A. Yes, it is.
10 Q. How do you decide which one to
11 use?
12 A. Occasionally ISPs will block
13 certain emails. AOL is notorious for blocking
14 certain emails, and I use Karen@tabberone as my
15 main ID. If I get a bounced back message, I will
16 use -- it will start going through my line of
17 other email accounts.
18 Q. They're all in order, the ones
19 that you gave me, the order you gave me usually
20 to go to tabberone next?
21 A. I usually go from tabberone to
22 Hotmail to Yahoo.
23 Q. I'm confused. You usually go to
24 the Karen@tabberone to Hotmail to Yahoo?
25 A. Right.
Page 19
1 Q. So they are in order?
2 A. Yes.
3 Q. Tabberone and Yahoo. When did
4 you first start using tabberone@yahoo?
5 A. I don't remember.
6 Q. No. 4,
7 tabberone@meadikov-webdesign. No. That is
8 tabber1@juno. That's it.
9 A. Okay. That one is probably in
10 2000 also.
11 Q. Both with the --
12 A. No, the one with the number one I
13 would have started back in 1998 when I went
14 online.
15 Q. Okay. So Tabber with a number
16 one 1998, Tabber with the O-N-E is what year
17 again?
18 A. Probably around 2000.
19 Q. Okay. And are those still in
20 operation?
21 A. I believe the Tabber with the
22 number one is. I don't believe I have used Juno
23 recently on either Tabber account.
24 Q. You still have an account with
25 Juno?
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1 A. Yeah.
2 Q. Okay.
3 A. I don't think they ever get rid
4 of you. I think the last time I went in to check
5 if anything was there, I could still log in. I
6 just have, I don't know, 15 pages' worth of junk
7 that I had to delete.
8 Q. Okay. Just junk mail?
9 A. Yeah, it is. Once I stopped
10 using that ID on eBay, I stopped getting a lot of
11 spam.
12 Q. So you don't use these on eBay?
13 A. No. Well, no. Back up.
14 Tabberone@yahoo -- yeah, tabberone@yahoo is
15 attached to my posting ID, which is VeRO asterisk
16 queen.
17 Q. That's your posting ID?
18 A. That is one of them. I usually
19 post under my maiden name. Very rarely -- it
20 doesn't do any good to post under VeRO*queen
21 because everybody knows who that is.
22 Q. What other names do you post
23 under? Tabberone written out?
24 A. Yes, that's my user ID on eBay.
25 Q. And VeRO*queen?
Page 21
1 A. Uh-huh.
2 Q. Those are the only names you post
3 under?
4 A. Yes.
5 Q. Okay. So the next in order was
6 Karen@meadnikovwebdesign?
7 A. Yes.
8 Q. Why did you start using this one?
9 A. It probably would be within the
10 past year or so. That attached to a buying ID on
11 eBay.
12 Q. Why did you decide to use a
13 different email address to it?
14 A. You have to under eBay rules.
15 You can have as many accounts as you want as they
16 don't interact with each other, but each account
17 must have a separate email address. You can
18 verify them with the same credit card. You have
19 to have a separate email address.
20 Q. And AshleyWeller2003?
21 A. I started that in 2003.
22 Q. Do you remember when in 2003?
23 A. It would have been the -- either
24 March or April of 2003.
25 Q. Is there any reason you remember
Page 22
1 that?
2 A. It was set up because of
3 litigation involved with Major League Baseball.
4 Q. Okay. So tell me about that.
5 What do you mean it was set up involving Major
6 League Baseball litigation?
7 A. What we have found in the past,
8 let's say, with Mars and Disney they will very
9 actively shut down items made with their licensed
10 fabric. We got into a confrontation with them,
11 and we have found that they stopped enforcing
12 that rule. They'll let everybody else and their
13 brother sell items made with the licensed fabric.
14 What I decided to do with Major League Baseball
15 was to see whether Major League Baseball acted
16 the same way that Mars and Disney had, that the
17 minute a lawsuit was filed, they stopped shutting
18 down other people, which basically means these
19 other people have a open playing field, and I'm
20 locked out because I'm in litigation, and I can't
21 list. So I had made up Ashweller and sent Bryan
22 Day from Major League Baseball properties --
23 Q. Can you spell it for me?
24 A. Bryan, B-R-Y-A-N, and then Day,
25 D-A-Y.
Page 23
1 Q. Uh-huh.
2 A. I sent him some auctions for
3 fabric items that were handcrafted and I got an
4 email back in response something along the lines
5 of we're discussing in-house how to handle this
6 situation, which we used as an attachment in one
7 of our filings.
8 Q. What was Bryan Day's title, do
9 you know?
10 A. He was in-house counsel, and I
11 don't remember what he was other than in-house
12 counsel. He had -- Ethan Orlinsky, and I have no
13 idea how to spell Orlinsky.
14 Q. Just phonetically.
15 A. Ethan, E-T-H-A-N, and I believe
16 it is O-R-L-I-N-S-K-Y, was in-house counsel and
17 like senior vice-president or something. I'm not
18 quite sure of his title. It is all in the Major
19 League Baseball filing paperwork that you have.
20 Q. Do you think Ethan was Bryan's
21 boss?
22 A. Yes.
23 Q. Okay. So you communicated with
24 Bryan Day as Ashley Wilson(sic). Did you know
25 that, in fact, he was communicating with you?
Page 24
1 A. No.
2 Q. Why did you use Ashley Wilson
3 rather than change your others, one of your other
4 email names?
5 A. If I were to contact him using my
6 name, he would see it for the setup that it was.
7 And there also is a possibility since we were
8 involved in litigation that he would not read any
9 email from me.
10 Q. Okay. Did you use -- have you
11 used -- I mean, putting this item aside for a
12 moment, have you used AshleyWeller2003 email
13 address, email account to communicate with
14 anybody else?
15 A. Yes.
16 Q. Okay. Who else?
17 A. I have used them to communicate
18 with Warner Brothers and Disney.
19 Q. Let's talk about that. Let's
20 start with Warner.
21 A. I contacted Marc Brandon,
22 M-A-R-C, B-R-A-N-D-O-N, when they had shut down
23 our auctions back in 2000, he was quite
24 reasonable. So when I spot blatant counterfeits
25 on eBay, I will send him the email, or I'll send
Page 25
1 him the auction listing for the blatant
2 counterfeit.
3 Q. Anything else?
4 A. With Marc, no? With Warner
5 Brothers? No.
6 Q. What about with Disney?
7 A. Same thing. I will send blatant
8 counterfeits to Disney, product enforcement.
9 Q. To Mary Fossier, F-O-S-S-I-E-R?
10 A. I had sent them to product
11 enforcement at Disney and been ignored. So I
12 have also then directly sent them to Mary Fossier
13 who was our contact person. Product enforcement
14 wasn't doing anything, and from what I have been
15 able to tell, Mary Fossier has not done anything.
16 Q. So then you also -- anyone else
17 besides MGA that you used this email name with,
18 other than what you have listed, of course?
19 A. Not that comes to mind.
20 Q. Okay. And you also, then, sent
21 an email under the Ashley Weller name to David
22 Oates at MGA, correct?
23 A. I sent more than one.
24 Q. Okay. How many did you send?
25 A. At least three.
Page 26
1 Q. And what was the purpose of those
2 emails?
3 A. I wanted to -- once I saw that
4 MGA had released fabric, I wanted to see whether
5 he would be shutting down auctions made with the
6 handcrafted fabric. So in the emails I would
7 report the blatant counterfeits, and I would see
8 the blatant counterfeits with one or two fabric
9 items.
10 Q. What was your thinking in
11 including both the counterfeits and the items
12 made from licensed fabric in one email?
13 A. I wanted to see if he was going
14 to shut down anything.
15 Q. And, again, you used the Ashley
16 Weller name for the same reasons you did with
17 Major League Baseball?
18 A. Yes.
19 Q. And did Mr. Oates respond to you?
20 A. Yes, he did. He sent me an email
21 on two occasions when I had reported items saying
22 he was instructing eBay to -- on one occasion, I
23 think he said he instructed eBay to shut down
24 auctions, but the fabric auction remained up. On
25 the second occasion, he sent an email instructing
Page 27
1 eBay to shut down some of the auctions.
2 Q. Did Mr. Oates know that he was,
3 in fact, communicating with you?
4 A. I do not know what Mr. Oates
5 thinks.
6 Q. But there was no indication in
7 your email that would lead him to think that he
8 was communicating with you?
9 A. No, there was none.
10 Q. Any other communications with
11 anybody else under the Ashley Weller name at any
12 time?
13 A. Not that I can recall.
14 MR. McFARLAND: Can we take a
15 quick break?
16 (Recess taken.)
17 MR. McFARLAND: Back on the
18 record.
19 (Exhibit Number 8 was marked.)
20 Q. Ms. Dudnikov, can you take a look
21 at this? In the middle of the page appears to be
22 a posting from you as tabberone?
23 A. Yes, it is.
24 Q. Okay. It is. Do you want to
25 take a moment? If you want to read the one above
Page 28
1 it and then respond, that's fine, whatever you
2 want to do.
3 A. You want me to read the one above
4 it?
5 Q. You can read it to yourself, if
6 you want to get the context.
7 A. Okay.
8 Q. Would you read your response?
9 A. "Rendition, not sure what you
10 mean, but it doesn't sound good. I would buy the
11 licensed fabric and make my own appliques out of
12 that. Debbie Mumm recently shut me down for
13 using their licensed fabric. It is not that they
14 objected to my using the fabric, they objected to
15 my use of their name. Gosh, federal law Fair Use
16 says I can say Debbie Mumm if it is Debbie Mumm.
17 They have got a federal lawsuit for me sitting on
18 their desk also."
19 Q. Okay. The section where you say,
20 "I would buy the licensed fabric and make my own
21 appliques out of that," what did you mean?
22 A. She was talking about making her
23 own Hello Kitty design, and I suggested that in
24 order to be more correct, to buy the licensed
25 Hello Kitty fabric and make appliques out of the
Page 29
1 licensed fabric and put that on an item as
2 opposed to making her own design.
3 Q. Okay. What you do mean by making
4 an applique? You mean cutting out the character
5 from the fabric?
6 A. Yes.
7 Q. So that would be -- for example,
8 with the Bratz fabric, that would be cutting
9 Sasha out of a licensed Bratz fabric?
10 A. As is being done on eBay right
11 now. Yes, that is what I mean.
12 Q. Okay. And then applying that
13 applique to something else?
14 A. Yes.
15 (Exhibit Number 9 was marked.)
16 Q. (BY MR. McFARLAND) Do you
17 want to take a minute and read through the page
18 and let me know if that posting under tabberone
19 is yours?
20 A. Yes, it is.
21 Q. Would you read that for me it?
22 A. It is post 21 of 22. And I have
23 in italics, "eBay making it easy for VeRO members
24 to commit perjury, not like they've had any
25 problem doing so anyway, but, hey, what else is
Page 30
1 new? I got some answer to interrogatories I
2 served and they lied on the response in a court
3 document, affidavit and all. I hate it when
4 people think I'm stupid."
5 Q. Who were you referring to?
6 A. I believe -- let's see. This is
7 8-13. I believe it was probably Allied.
8 Q. And that's the Dunkin' Donuts
9 case?
10 A. Yes, it is.
11 Q. Did you tell them that you -- did
12 you tell anyone that were representing Dunkin'
13 Donuts that you thought they were lying?
14 A. During the deposition, on our --
15 let me back up. On our interrogatories to them,
16 we had asked a very, very specific question, and
17 the lawyer had asked why I had asked the question
18 that I had because we wanted to get the answer
19 from Allied. We just did not think that they
20 would not tell the truth on it. Also, the other
21 part, since this is a little bit out of context,
22 what this post was about is eBay had put a button
23 at the bottom of the auction that said VeRO
24 report. So all theoretically somebody would have
25 to do is go to the auction, click on the button
Page 31
1 and just get shut down right from there if they
2 had the VeRO password. That had not gone
3 through.
4 (Exhibit Number 10 was marked.)
5 Q. The posting tabberone in the
6 middle of the top of page, is that your post?
7 A. Yes, it is.
8 Q. Would you read that for me?
9 A. Yes, I will. It is reply No. 3,
10 "No, no, no. Don't hand paint someone's licensed
11 design. That is just asking for trouble. Buy
12 some fabric and cut out the designs and put them
13 on wood. You are probably okay there. The hand
14 painting thing will get you in hot water."
15 Q. So this refers to what we
16 discussed earlier is you can get -- buy the
17 licensed fabric, cut out a design such as Sasha,
18 and then, for example, apply that to wood or
19 whatever you want and that is okay?
20 A. My belief, yes, it is.
21 Q. Have you ever been paid for any
22 of the advice that you have given to people?
23 A. No. I have not.
24 Q. Have you ever received any other
25 form of compensation for the advice that you've
Page 32
1 given to people?
2 A. Heartfelt thanks.
3 Q. But no gifts or anything like
4 that?
5 A. No.
6 Q. When I see tabberone postings, is
7 it fair to say that those are you and not Mike,
8 or sometimes it is Mike posted under tabberone?
9 A. I would say that 99 percent of
10 the postings under tabberone are mine.
11 Occasionally I will ask him how would -- how do
12 you think I should word this, but I'm doing the
13 actual typing and hitting the submit button.
14 (Exhibit Number 11 was marked.)
15 Q. Do you see the post under
16 tabberone? Is that your post?
17 A. Yes, it is.
18 Q. Okay. And if you just read the
19 first two sentences, "I doubt that" --
20 A. "I doubt that Warner Brothers
21 would give you permission. Don't sell them on
22 eBay where you are too easy to find."
23 Q. What do you mean by that second
24 sentence, "don't sell them on eBay where you are
25 too easy to find"?
Page 33
1 A. Warner Brothers polices eBay. I
2 was telling her not to sell them on there
3 because, in my opinion, what she was going to try
4 and do making Bugs Bunny and Scooby Doo candy
5 kisses out of plastic, canvas and yarn would be
6 infringing on their copyrights.
7 Q. But why say "don't sell them
8 where they are too easy to find"? Why not say
9 "don't sell them"?
10 A. Because I'm not their mother.
11 I'm saying don't sell them -- she was asking
12 because she wants to list them on eBay. She
13 specifically says "I'm planning to sell them on
14 eBay." I said don't sell them on eBay.
15 Q. Well, that is not really what you
16 say. You say "don't sell them on eBay where you
17 are easy to find" as opposed to "don't sell them
18 on eBay," period. Do you understand the
19 distinction? I'm just confused on why you
20 wouldn't say simply "don't sell them. In my
21 opinion, you shouldn't sell them."
22 A. Because I just -- that's what I
23 did.
24 Q. Okay.
25 A. Ah, 6:39. Oh, 8:03. I have had
Page 34
1 my coffee by then.
2 Q. The licensed fabric, you have
3 purchased over the years quite a few licensed
4 fabrics?
5 A. Yes, I have.
6 Q. Can you list for me some of the
7 licensed fabrics that you purchased?
8 A. Okay. M&M/Mars, United Media,
9 which is Peanuts fabric, Major League Baseball,
10 National Football League, NASCAR, Betty Boop,
11 Coke, Debbie Mumm, Teresa Kogut.
12 Q. Who is that?
13 A. T-E-R-E-S-A, K-O-G-U-T.
14 Q. Okay.
15 A. Dianna Markum. Dianna is spelled
16 with two N's. Beth Yarbrough, Henry Alexander,
17 Sanrio, Strawberry Shortcake, My Little Pony,
18 Shrek, Disney, Care Bears, Bob the Builder.
19 We're just talking licensed fabrics?
20 Q. Correct.
21 A. Okay.
22 Q. MGM?
23 A. No -- well, I have purchased
24 fabric. I believe his name is Michael Miller.
25 There is somebody like a Sue Beth, but I don't
Page 35
1 know if that is just her first and middle name,
2 and I've forgotten her middle name. I remember
3 Sue Beth or something.
4 Q. Okay.
5 A. Okay. Well, if we're talking
6 about licensed or copyrighted?
7 Q. Either one.
8 A. Can we clarify?
9 Q. Sure.
10 A. Okay. Springs has quite a few
11 copyrighted fabrics.
12 Q. Springs?
13 A. Springs, S-P-R-I-N-G-S. That
14 would be the one. Blue Jean Teddy.
15 Q. That was Sue Beth?
16 A. No. That is Blue Jean Teddy.
17 When I saw Springs, that is who prints the Blue
18 Jean Teddy fabric.
19 Q. Is that separate from Springs or
20 in addition to Springs?
21 A. It is in addition to Springs.
22 Blue Jean Teddy is another licensed print.
23 Springs has copyrighted fabric.
24 Q. Are you distinguishing that, for
25 example, from more character-based versus
Page 36
1 licensed designs or copyright designs?
2 A. Correct. Let's say Springs will
3 print soccer fabric, and it will just have soccer
4 balls, and they will copyright the soccer balls.
5 Q. Okay.
6 A. This, I believe, right now is
7 what I can think of for licensed fabric short of
8 being able to get online and cheat.
9 Q. Okay. Now, what about other than
10 licensed fabric? What about other licensed --
11 you made a distinction a minute ago. You're only
12 talking about licensed fabric, and so you bought
13 some other licensed items. What are those?
14 A. I have bought appliques. I have
15 bought the appliques from Disney, Wiggles, MGA,
16 Sesame Street. That's as far as the appliques
17 that I can think of. There may be more, but I
18 don't think so.
19 Q. Anything other than fabric and
20 the appliques?
21 A. I have used licensed embroidery
22 designs.
23 Q. And whose are those? What
24 rights' owners did those involve?
25 A. Disney -- I'm not sure who owns
Page 37
1 the Muppets. It might just be the Muppets.
2 Q. Okay.
3 A. I don't remember off the top of
4 my head. I probably do have some Sesame Street
5 ones.
6 Q. Okay. Anything else? Any other
7 types of products that you have purchased?
8 A. Let me think about that for a
9 second. May have in the past purchased things
10 like a licensed T-shirt and made something else
11 out of it.
12 Q. Okay.
13 A. I have purchased licensed
14 bandanas and made items from them. I'm trying to
15 remember if I would have purchased any hats and
16 added my own embellishment to them. It was more
17 just a, "Gee, wouldn't that be an easy idea."
18 Bandanas and the shirts come to mind. And that
19 is all that comes to mind right now.
20 Q. During the deposition, if
21 anything else comes to mind, we can always go
22 back. Let's talk about the licensed fabric for a
23 minute. You bought a lot of licensed fabric over
24 the years. When did you start buying licensed
25 fabric? Was it M&M? Is that when you started?
Page 38
1 A. I started in 1998 with the M&M
2 fabric.
3 Q. Okay. Now, with respect to the
4 fabric that you have bought over the years, do
5 you recall at times seeing any kind of language
6 on the selvage?
7 A. Yes, I do.
8 Q. Tell me what you recall.
9 A. There are two basic ones.
10 Disney, Springs, MGA, say "intended for
11 noncommercial use only."
12 Q. Disney, Springs and MGA is for
13 noncommercial use only?
14 A. Intended for noncommercial use
15 only.
16 Q. There is another type?
17 A. Yes. Major League Baseball and
18 the NFL say "for individual consumption only, any
19 other use is prohibited and illegal."
20 Q. So you knew about the language on
21 the selvage at the time that you purchased these
22 fabrics?
23 A. Yes, I did.
24 Q. And you said the second type was
25 NFL and baseball?
Page 39
1 A. Yes.
2 Q. But it is your position that this
3 language does not restrict your ability to use
4 the fabric; is that correct?
5 A. That is correct.
6 Q. And that is based upon your
7 understanding of the intellectual property laws?
8 A. That is based upon my
9 understanding of the intellectual property laws.
10 It is also based upon my dealings with Major
11 League Baseball properties.
12 Q. Okay. What about them?
13 A. Major League Baseball commented
14 quite a few times about their disclaimer. We
15 asked them to please provide us with a federal or
16 state statute that backed up that their
17 disclaimer would be binding upon me as a
18 purchaser and that I could not use the fabric,
19 and they never came up with anything.
20 Q. Did they ever tell you they
21 agreed with your analysis or simply they didn't
22 provide you any cases?
23 A. They would never tell me that
24 they agreed with me. They did settle with me to
25 some extent. I would say that is a form of
Page 40
1 agreement.
2 Q. Oh, I understand that you think
3 that, but they never told you they agreed with
4 you?
5 A. That is correct. I, just as an
6 aside, would add that between two law firms, six
7 partners and four associates, if there was any
8 language, somebody would have told me.
9 Q. Was your understanding of the
10 intellectual property laws that there has to be a
11 published decision in order for there to be a
12 right?
13 A. Can you please repeat that?
14 Q. Sure. Is it your understanding
15 that unless there is a published decision,
16 intellectual property rights' owners cannot
17 assert a particular position?
18 A. I don't believe I know the answer
19 to that. I would believe that a published
20 decision would be a court case where they would
21 cite some language from the court upholding a
22 federal or state statute. The only fabric case
23 that we have been able to find is Precious
24 Moments.
25 Q. And you have talked about that on
Page 41
1 your website?
2 A. Yes.
3 Q. Do you ever list auctions for
4 other people?
5 A. Yes, I do. I am a registered
6 trading assistant with eBay.
7 Q. Okay. How many auctions have you
8 listed for other people?
9 A. I don't know. I would say it is
10 somewhere between 10 and 50.
11 Q. What types of items were being
12 offered for sale with respect to these 10 to 50
13 auctions?
14 A. I have listed decorator items,
15 let's say collectors' plates. I believe I
16 listed -- somebody had something with a team
17 picture on it, some football team somewhere won
18 the Super Bowl, and you know how you get the
19 picture and they put it on a nice little plaque.
20 They do that. I have sold generators, trailers.
21 I sold a CD player. I sold some Petunia Pickle
22 Bottom diaper bags. I sold some furniture for my
23 next-door neighbor back East, and he also had
24 Russian collector plates. I sold those for him.
25 Q. Okay.
Page 42
1 A. I don't believe I remember
2 anything else.
3 Q. Okay. Is it fair to say that you
4 haven't sold what you have considered these
5 handcrafted items that you're making, you haven't
6 sold those for other people?
7 A. No. I'm not going to undercut my
8 market.
9 Q. The things that you have sold for
10 other people are the kinds of things that you
11 have listed here that aren't at issue in our
12 case?
13 A. Correct.
14 Q. Okay. So let's talk about all of
15 the items that you have made, which, you know,
16 type of items. I mean, I understand there is
17 different fabrics. We have gone through the
18 different fabrics, but can you list for me all
19 the different types of items that you've made,
20 the handmade items?
21 A. Okay. Quillows.
22 Q. What?
23 A. Quillows, Q-U-I-L-L-O-W-S.
24 Q. Okay.
25 A. Baby comforters, regular
Page 43
1 comforters, diaper bags, diaper stackers, crib
2 bumper guards, crib organizers, bibs, the little
3 headrest carseat cover things for babies. For
4 little baby, you have to have something that is
5 padded at the top, and it fits inside the
6 carseat, but for the little, little kids, it
7 keeps their head from moving too much, and so it
8 is padded. It fits -- it has holes in it so you
9 can put the seatbelt from the baby carrier
10 through it to hold the baby in, but then it's got
11 a head support carrier in it, head support little
12 padded thingy.
13 Q. Okay.
14 A. Those are baby items. I've made
15 scrub tops, pajamas, sweatpants, Hawaiian shirts,
16 T-shirts with licensed print trim around the
17 sleeve. T-shirts and sweatshirts with appliques
18 that I've made from fabric and applied -- and
19 then added glitter and sequins and basically if
20 people are getting M&M stuff, they want it gaudy.
21 So I just put a bunch of bright stuff on there.
22 Kitchen items, towels, placemats, napkin,
23 potholders. I've got curtains, valances.
24 Q. Aprons under kitchen items?
25 A. Yeah, aprons. I have a variety
Page 44
1 of different styles of aprons, but aprons, fleece
2 zip-up jackets, fleece pullover jackets, fleece
3 slippers, fleece hats, fleece scarves, fleece
4 mittens, eyeglass case, checkbook covers.
5 Basically if it can be made with fabric, I'll
6 give it a shot. Oh, well, pillowcases, pillow
7 shams. I have a whole slew of different types of
8 pillow shams. Once again, short of the cheating
9 and looking at my website, that is what comes to
10 mind.
11 Q. So going back for a second, you
12 talked about you had on these different types of
13 licensed items that you had purchased licensed
14 merchandise. One was possibly this licensed
15 T-shirt that you made something else out of. Do
16 you remember what you made out of it?
17 A. I believe I made a pillow. What
18 happened was I saw somebody who had a really neat
19 M&M pillow, and I recognized it as a shirt and
20 her T-shirt -- her pillow went really high, and
21 I'm like, I got to get me some of that.
22 Q. Okay. And you mentioned licensed
23 bandanas. Did you make something else out of?
24 A. Yes.
25 Q. What did you make out of it?
Page 45
1 A. I made a Harley Davidson pillow.
2 Q. You made a pillow?
3 A. Yes, I did.
4 Q. So how did you do that?
5 A. I took the bandana, I got some
6 plain fabric on the back, sewed it around, left
7 an opening, stuffed it, sealed up the opening,
8 sold it for a whopping 17 bucks for one pillow,
9 too.
10 Q. And the embroidery, is that what
11 like you're just describing, in other words,
12 putting it on a T-shirt?
13 A. I have done the -- no. I don't
14 put the embroidery on the T-shirt because
15 T-shirts are usually made out of stretchy
16 material, and that is tougher to do and to keep
17 it looking nice without puckering. So I have not
18 embroidered on T-shirts. I have embroidered on
19 aprons, kids' aprons, personalize it with
20 somebody's name. I have done pillow shams. I
21 will take a regular towel and let's say I'll
22 embroider a Minnie Mouse design, which I just
23 remember what else I purchased licensed. I also
24 purchased licensed ribbon. I'll put a strip of
25 the licensed ribbon across -- you know how on a
Page 46
1 towel you've got the terry across part and there
2 is usually a band that is plain. I will take the
3 licensed ribbon or licensed fabric, put it on the
4 towel, and then embroider a coordinating design
5 on the towel to go with that and sell that.
6 Q. Okay.
7 MR. McFARLAND: I need to take a
8 break for one second to make a quick call. I'll
9 be right back.
10 (Recess taken.)
11 MR. McFARLAND: Let's go back on
12 the record.
13 Q. Let's go ahead and turn or our
14 attention to Exhibit 6. Ms. Dudnikov, you were
15 here yesterday when we were discussing this
16 Exhibit 6?
17 A. Yes, I was.
18 Q. Okay. And if you could just --
19 the highlighted language, if can you read that.
20 A. "If you don't see what you want,
21 just ask me. I'm willing to make anything within
22 reason."
23 Q. Okay. And you said a minute ago
24 if it can be made with fabric, you will give it a
25 shot?
Page 47
1 A. Yes.
2 Q. Yesterday you and Mr. Meadors
3 were talking about some limitations on what you
4 would make?
5 A. Yes.
6 Q. What are those limitations?
7 A. For instance, I have had people
8 ask me to make futon covers. Licensed fabric
9 that I'm using is 100 percent cotton about 44
10 inches wide, which would mean anything I would
11 make would have to have a seam. Additionally,
12 the regular fabric sewn. Let's say they wanted
13 Coke futon. The only fabric I can get ahold of
14 is the 100 percent lightweight cotton. I will
15 not make a futon cover because in my professional
16 opinion, it will not stand up to any wear and
17 will tear at seams because of the weight and the
18 shifting that goes on a futon cover. So I will
19 not make that. I have had people by the same
20 token ask me to make carseat covers. The same
21 restriction applies. The fabric is not suitable
22 for carseat covers because of the wear that it
23 would receive.
24 Q. Okay. Any other examples?
25 A. I have had people to ask me to
Page 48
1 make sheets, and I told them that the biggest
2 fitted sheet I am capable of making is a crib
3 sheet because of the seam issue, but I usually
4 recommend that they don't spend the money on a
5 licensed fabric sheet. There is too many
6 commercially available that they can get that are
7 made out of fabric that is more suitable for a
8 baby's crib.
9 Q. Okay. What else?
10 A. As far as I did have somebody ask
11 me if could I actually go to M&M/Mars website and
12 download some of the images and put on a T-shirt
13 for them. I said, no, that would be copyright
14 and trademark infringement, and I wasn't going to
15 do that.
16 Q. Okay. What else? Anything else
17 that you wouldn't do that you were asked to do?
18 A. Just for some things on the size
19 of an item that somebody might want, if I don't
20 feel I can do the job well. Let's say, a
21 king-sized comforter is just so huge that for me
22 to do it and be happy with the outcome, I will
23 tell them no.
24 Q. Okay.
25 A. Oh, and I had somebody ask me to
Page 49
1 make them an ironing board cover, and I said that
2 won't work either.
3 Q. Okay. So it sounds like to me,
4 going back to the three categories you laid out
5 yesterday, as long as it is not infringing, as
6 long as it is not illegal and as long as it is
7 not unreasonable, some of the things you've
8 listed here go to the reasonable issues here. In
9 other words, there are some practical
10 considerations, right?
11 A. Yes.
12 Q. And then you exercise your
13 judgment and say it is not practical for one of
14 the various reasons you have listed?
15 A. Yes.
16 Q. Okay. With respect to illegal,
17 you gave one example, for example, downloading
18 images from a website and copying those onto a
19 T-shirt. You view that as illegal, and you won't
20 do that?
21 A. Correct, nor will I screen print
22 my own fabric.
23 Q. Okay.
24 A. There are a number of images or a
25 number of characters, let's say, that are out
Page 50
1 there that there is no licensed fabric on, for
2 instance, the Incredible Hulk. I will not make
3 my own Incredible Hulk fabric.
4 Q. I understand. But that
5 limitation doesn't apply if you could obtain the
6 fabric?
7 A. Correct.
8 Q. Licensed fabric?
9 A. If could I obtain licensed
10 fabric, correct.
11 Q. Okay. Or, for example, a
12 licensed T-shirt, if you so chose?
13 A. Correct.
14 Q. And then the third category was
15 not infringing, but that is -- what is different
16 between you listed yesterday, not infringing
17 versus illegal. Was illegal referring to
18 something different?
19 A. To my way of thinking, infringing
20 would be illegal.
21 Q. Okay. That's what I would think
22 so. So really the two types of things you
23 wouldn't do, things that are illegal/infringing,
24 and things that are not reasonable?
25 A. Correct.
Page 51
1 Q. Can you give me some examples of
2 some custom items that you have made for people.
3 I think you listed all of the items you made, but
4 in addition, I think there is some people that
5 have come to you and said I want -- I think
6 Mr. Meadors gave an example yesterday of a Dale
7 Earnhardt vest or something?
8 A. Yes. I did make Dale Earnhardt
9 vest for a wedding. I did make -- apparently in
10 Hawaii there is a some big deal with the one-year
11 old naming ceremony. Not quite sure about all
12 that. I made an outfit for that. I had somebody
13 request -- they have four kids, and apparently
14 all of the kids' items are color coded. So Steve
15 always gets blue. Dan always gets burgundy,
16 whatever. So I made them four solid-colored
17 quillows, just plain fabric with a name
18 embroidered on them.
19 Q. Okay.
20 A. And that is something extra
21 because normally I don't have plain fabrics
22 around. She asked me if I could do that. That
23 is how they divvy up their kids' stuff.
24 Q. Did you ask her what happens if
25 the kid doesn't like the color they have been
Page 52
1 chosen?
2 A. No, I didn't get into that
3 because she was paying full price for it. So I
4 said, oh, I can put the kids' names on there. No
5 extra charge for personalization. Apparently I
6 did make some stuff for an employee picnic. They
7 wanted some of the people dressed alike. So I
8 made them some Jeff Gordon items.
9 Q. What items?
10 A. Jeff Gordon. He is a NASCAR
11 driver.
12 Q. Okay.
13 A. I have had -- let's say I'll make
14 a regular tote bag. Somebody will ask, "Can I
15 get a pocket on the inside?" My normal apron has
16 pockets across the bottom. Somebody will go, "I
17 don't want pockets across the bottom. Can you
18 put one in the middle?" Yes, I can. "My
19 husband's extra tall and extra big. Can you make
20 the apron a bit wider and bit longer," and "your
21 strings are only 22, can you make them 40," just
22 kind of customize items that I normally make?
23 Q. Okay. Anything else you can
24 remember?
25 A. No. I do think I made a
Page 53
1 father/son matching Hawaiian shirts deal. If I
2 think of anything else, I'll bring it up.
3 Q. All right. Oh, the hot
4 potholders that you make, the outside is licensed
5 fabric, correct?
6 A. Yes, it is.
7 Q. What you see?
8 A. Yes.
9 Q. What's on the inside?
10 A. The inside is either made with
11 two layers of 100 percent cotton bondable fleece,
12 or two layers of 100 percent cotton quilted
13 fabric.
14 Q. And is there some standard with
15 respect to hot potholders in terms of what goes
16 inside them so that the person using them doesn't
17 burn their hands?
18 A. No, there is not. My -- I would
19 go on to add that my potholders are decorative,
20 and that if somebody is spending $15 for two
21 potholders with Dale Earnhardt fabric is going to
22 hang them up to look pretty.
23 Q. Is there any disclosure to the
24 buyer that they're for decorative purposes only?
25 A. No, there is not.
Page 54
1 Q. Do you believe that they satisfy
2 the requirements of a potholder in terms of
3 safety?
4 A. Yes, I do.
5 Q. What basis do you have for that?
6 A. Federal and state statutes.
7 Q. Which statutes?
8 A. Well, actually, it would be
9 negative federal and state statutes. If you want
10 to mark this as exhibit whatever you want to mark
11 it as.
12 Q. You're bringing something to the
13 deposition?
14 A. Yes, I am.
15 Q. Let me just see this first. So
16 in a sense, you're producing this?
17 A. Yes.
18 Q. Because you don't really have the
19 ability to add exhibits, but let me look at it.
20 MR. McFARLAND: We can go ahead
21 and mark these if you want. We'll consider these
22 documents that you're introducing in this case.
23 (Exhibit Number 12 was marked.)
24 Q. You have brought with you today,
25 it looks like, some kind of search results. Is
Page 55
1 this something that you all ran?
2 A. Yes, it is.
3 Q. When did you run this?
4 A. This morning.
5 Q. Okay. Did you run the search
6 prior to this morning?
7 A. No, we had not.
8 Q. And why did you run the search?
9 Because of my question yesterday to Mr. Meadors?
10 A. Yes, we did.
11 Q. Okay. And so what do you think
12 this search shows us?
13 A. It shows us that in 1999, the
14 federal government canceled federal
15 specifications and standards for potholders.
16 Q. And that is based on what is
17 shown on page 2?
18 A. Yes.
19 Q. Did you do any further research
20 than what is shown in this document?
21 A. We did look for some other
22 standards, and we did this morning purchase a
23 potholder at Wal-Mart, and my potholders are made
24 from the same materials as the potholders sold in
25 a national chain.
Page 56
1 Q. Okay. And how do you know what
2 is in the inside of this potholder?
3 A. There is a tag on the back, if
4 you'll flip it over. And you'll see that it says
5 that it is 100 percent cotton outside, hundred
6 percent cotton inside.
7 Q. But the research -- again, to
8 make sure it is clear, the research you just
9 provided me was research done in response to my
10 question yesterday, not research that you had
11 done at a prior time?
12 A. Not on potholders. We have done
13 research in the past on other items.
14 Q. What items are those?
15 A. Fabric and pillow stuffing and
16 quilt batting.
17 Q. Okay. And what research did you
18 do on that?
19 A. We looked to see whether the
20 items had a federal regulation behind them or if
21 the item itself that I was purchasing said
22 anything on the packaging.
23 Q. And did you find any results from
24 research?
25 A. Yes.
Page 57
1 Q. What did you learn?
2 A. The cotton fabrics that I used
3 are class one textile for wearing apparel. The
4 stuffing that I use complies with the standard
5 for home decorating, and the same with the quilt
6 batting.
7 Q. Is that a federal standard?
8 A. Yes, it is.
9 Q. Have you ever researched any
10 relevant state standards?
11 A. No, I have not.
12 Q. Is it your understanding that
13 license agreements can set forth standards that
14 are different from federal or state standards?
15 A. Can you repeat that, please?
16 Q. Sure. Is it your understanding
17 that a licensor can set forth standards on a
18 license agreement that are different from
19 standards required by federal or state law?
20 A. I would agree that a licensor can
21 set rules and regulations.
22 Q. Okay. And that those don't
23 necessarily -- though could be, for example, have
24 additional requirements beyond the floor of what
25 the federal or state laws require?
Page 58
1 A. Yes.
2 Q. Let's take a quick look at the
3 complaint. Would you turn your attention to page
4 4, paragraph 10, and you see at the end,
5 "plaintiffs seek a Declaratory Judgment affirming
6 to right to refer to Bratz with these sales and
7 with any other similar sales as well as their
8 right to use detailed pictures of products
9 offered for sale." Do you see that?
10 A. Yes, I do.
11 Q. And the right above it, we, this
12 is plaintiffs seeks -- "seeks a Declaratory
13 Judgment affirming the right under law to sell
14 lawfully-acquired Bratz items without further
15 interference from the Defendant."
16 When you talk about similar sales and
17 Bratz items, we talked earlier about all the
18 various different things that you believe you
19 have the right to make from licensed fabric or
20 licensed appliques, licensed borders, is that
21 what you're referring to here?
22 A. Yes, it is.
23 Q. Yesterday while you were here,
24 Mr. Meadors was testifying about some of the
25 requirements in the Mars agreement that we're
Page 59
1 going to seek that pursuant to your request
2 earlier -- and I appreciate that. We're going to
3 seek to get Mars to allow to produce. But he was
4 mentioned that were certain requirements in the
5 agreement, for example, to include the legal
6 tagging, registrations for circle R Mars, to have
7 insurance; is that correct?
8 A. I'm not commenting on the
9 confidential agreement.
10 Q. Okay. So why don't we take a
11 look at that Bratz hat that you brought with you?
12 Thank you. So you're now examining -- this is
13 the hat that was offered for sale that was the
14 subject of the take-down notice, correct?
15 A. Yes.
16 Q. And it was not, in fact, sold,
17 correct?
18 A. No, because it is right here.
19 Q. Okay. And this is the only such
20 hat that exists, correct? I'm sorry. That was a
21 bad question. This is the only such hat that you
22 have made?
23 A. Yes. This is the only such hat
24 that I have made.
25 Q. Okay. So I'm looking on the
Page 60
1 inside of the hat, and I don't see any legal
2 lines or tags or any kind of notices. Is that
3 correct?
4 A. That's correct.
5 Q. Okay. And I'm looking at the
6 hat, the inside, the outside. I don't see
7 anything on this hat that says, you know,
8 "manufactured by Tabberone" or "manufactured by
9 Ms. Dudnikov" or anything to that effect,
10 correct?
11 A. That is correct.
12 Q. In fact, I don't see any
13 indication of the source at all. No copyright
14 notice, no trademark notice?
15 A. Correct.
16 Q. So, for example, there is no
17 disclaimer anywhere on the product that says this
18 is not a licensed Bratz item, correct?
19 A. No disclaimer on the product.
20 Q. Now, you mentioned, for example,
21 going back to these different items that you have
22 purchased over the years this licensed ribbon,
23 and I think you gave us an example. Do you
24 remember any other examples of the items you have
25 made using licensed ribbon?
Page 61
1 A. I had the towels. I have
2 probably put on shirts, kids' aprons, trim on a
3 pillowcase, used as a -- let's say, a drawstring
4 bag that is probably -- that would be it, that I
5 can think of.
6 Q. And these appliques that you
7 purchased, you mentioned Disney, Wiggles, MGA,
8 Sesame Street, what did you make out of those
9 appliques?
10 A. Towels, hats, aprons, put them on
11 pillow shams, put them on tote bags. That's what
12 I can think of right now. I know what else I
13 have made. I have made shower curtains.
14 Q. Shower curtains? Okay.
15 A. Uh-huh. Tissue box covers.
16 MR. McFARLAND: Let's go off the
17 record for one second.
18 (Discussion off the record.)
19 Q. I'm going to show you -- I don't
20 want to have them attached, but I believe you
21 sent us an apron and it looks like a pillow sham,
22 which is a pillow sham of Bratz?
23 A. Yes. And I also sent one other
24 apron. It is dark green. It's got an Oscar the
25 Grouch applique.
Page 62
1 Q. What applique?
2 A. Oscar the Grouch.
3 Q. I don't have it with me. But you
4 sent one other thing, too?
5 A. Okay. Does David have a son
6 because I embroidered David on it just in case he
7 had a little boy.
8 Q. I have seen that. I just didn't
9 bring it with me. You sent these to us as
10 examples of things that you have made?
11 A. Yes.
12 Q. I say "these." I want to make
13 sure the record is clear I am holding a Bratz
14 apron --
15 A. Children's apron.
16 Q. -- children's apron?
17 A. Yes.
18 Q. And a Bratz pillow sham?
19 A. Yes.
20 Q. Okay. Both in pink with Bratz
21 characters on them. You made both of these?
22 A. Yes, I did.
23 Q. And you provided these to us as
24 examples of things that you make?
25 A. Yes.
Page 63
1 Q. But these have not been offered
2 for sale?
3 A. No, they have not.
4 Q. Thank you for bringing that.
5 MR. McFARLAND: Let's take a
6 quick break. Let me make a call. I think we're
7 done, and we can all be out of here early.
8 (Recess taken.)
9 MR. McFARLAND: Back on the
10 record. The plaintiffs have just provided me
11 with one, two, three, four -- five binders
12 additional documents being produced pursuant to
13 the document request served by MGA. We talked
14 and agreed during the break that it will be
15 impractical for me to review all of these today
16 and to question Ms. Dudnikov on these. So
17 Ms. Dudnikov has agreed that we can review these
18 when I return to Los Angeles, and if we have any
19 questions regarding these, we can follow up on
20 this deposition, her deposition telephonically.
21 Is that agreed?
22 MS. DUDNIKOV: Can we do
23 telephonically or email because the phone is not
24 always the best?
25 MR. MEADORS: The batteries on
Page 64
1 our cell phones are getting weak, and what used
2 to be a 35-minute call is down to 15 or 20
3 minutes now.
4 MR. McFARLAND: Okay. We'll work
5 on that, either telephonically or email. In
6 other words, it will still be the same
7 deposition.
8 MS. DUDNIKOV: Yes, still under
9 oath, and I would understand that I was still
10 under oath.
11 MR. McFARLAND: Okay. So let me
12 take a quick break and let me make a call.
13 (Recess taken.)
14 MR. McFARLAND: We'll have the
15 same stipulation as yesterday, that we will --
16 that this is also subject to our ability to
17 continue by phone or email of this deposition
18 with respect to the documents that were produced
19 today, but let's go ahead and do a transcript.
20 If we need to do a second one, we can do a second
21 one. Let's go ahead and get this transcript in
22 final. You'll provide the original to us. I
23 will send the original to Ms. Dudnikov. I will
24 send you an email, Ms. Dudnikov, that we have
25 sent it so you know it is on its way. You will
Page 65
1 have 15 days to make any changes that you would
2 like to make, and you will, then, return it to
3 us. If you don't make any changes within 15
4 days, we will deem it approved as is.
5 MS. DUDNIKOV: Okay.
6 MR. McFARLAND: All right.
7 That's it.
8 The within proceedings were concluded at
9 the approximate hour of 12:05 p.m. on October 15,
10 2004.
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Page 66
1 STATE OF COLORADO )
2 ) SS. REPORTER'S
COUNTY OF ADAMS ) CERTIFICATE
3
4 I, Dawn K. Larson, Registered Professional
5 Reporter and Notary Public within the State of
6 Colorado, do hereby certify that previous to the
7 commencement of the examination, the deponent was
8 duly sworn by me to testify to the truth.
9 I further certify that this deposition was
10 taken in shorthand by me at the time and place
11 herein set forth and was thereafter reduced to
12 typewritten form, and that the foregoing constitutes
13 a true and correct transcript.
14 I further certify that I am not related
15 to, employed by, nor of counsel for any of the
16 parties or attorneys herein, nor otherwise
17 interested in the result of the within action.
18 In witness whereof, I have affixed my
19 signature this 21st day of October 2004.
20 My commission expires June 13, 2006.
21
DAWN K. LARSON
22 Registered Professional Reporter
and Notary Public
23
24
25
|