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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF NEBRASKA
SHOEMONEY MEDIA GROUP, INC., )
)
Plaintiff, )
)
vs. )
)
KEYEN FARLL and JOHN J. FARLL, )
)
Defendants. )
CASE NO. 09-cv-00131
AFFIDAVIT OF
KEYEN FARLL
STATE OF NEW YORK )
)ss.
COUNTY OF NEW YORK )
COMES NOW THE AFFIAT, Keyen Farell, who, under oath, deposes and states as '
follows:
1. I am over the age of twenty-one (21) and competent to testify to the facts herein.
2. I have personal knowledge ofthe facts set forth within this Affidavit.
3. I am named as a Defendant in the above-captioned matter. This Affdavit is
submitted in connection with Defendants' Motion to Dismiss the Complaint filed on this day.
4. I am a resident ofthe State of
New York.
5. I have never been a resident ofthe State of
Nebraska.
6. I have never visited the State of
Nebraska.
7. I do not curently, nor have I ever, owned any real property located in the State of
Nebraska.
8. I do not curently, nor have I ever, owned a business that was incorporated under the
laws of
Nebraska.
9. I do not maintain an offce, employees, contractors, officers, directors, agents, or
volunteers in Nebraska.
Case: 8:09-cv-00131-JFB-FG3 Document #: 11-2 Date Filed: 04/30/2009 Page 1 of 5
10. I have been employed by Google, Inc. ("Google") located at 76 Ninth Avenue,
New York, New York 10011 since September 17, 2007. At all times material hereto I have been
an Account Coordinator at Google.
11. When internet users enter search terms in ww.google.com. Google's search engine
displays advertisements of varous entities that may be of interest to the internet user. In
conjunction with this, Google sells contextual advertising through a program called "AdWords."
"AdW ords" allows advertisers to bid for their advertising hyperlink to appear above or next to
Google search results when internet users enter specific search terms in a Google search.
12. An "AdWords" advertising hyperlink contains the text of an ad. If an internet user is
interested, the user can click on the link, which takes the internet user to the advertiser's website.
With this, the "AdW ords" advertising hyperlink is passive and simply makes information available
to internet users who may be interested.
13. I am the owner ofthe domain ww.myincentivewebsite.com.
14. In promoting the website ww.myincentivewebsite.com. I have not targeted
Nebraska residents through mailings, phone calls or otherwise.
15. The only contact I have had with Nebraska residents has been on the internet.
16. On or about Januar 22, 2009, I opened a Google "AdWords" account with the
financial sponsorship of my father, John J. Farell, and under the name John J. Farell, for the
purose of advertising the website, ww.myincentivewebsite.com.
17. I had no knowledge of the existence of Shoemoney Media Group, Inc. or its
trademark, SHOEMONEY, until March 31, 2009. I did not intend to infrnge upon the
SHOEMONEY trademark in any way.
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Case: 8:09-cv-00131-JFB-FG3 Document #: 11-2 Date Filed: 04/30/2009 Page 2 of 5
18. Google has a policy that it does not allow advertisers to use a registered trademark in
the text of sponsored links. When a keyword is submitted for an "AdWords" account, the keyword
is run through the Google system. If the keyword is a registered trademark, the Google system is
supposed to prevent the trademark from appearng in the text of the ad.
19. I relied upon this internal review at Google in setting up the "AdWords" account.
20. Google's internal review process failed to prevent the term "shoemoney" from
appearng in the text of the ads associated with the "AdWords" account I opened on Januar 22,
2009.
21. I did not take any action to circumvent federal
law and/or Google policy to allow the
SHOEMONEY mark to appear in the text of
the sponsored lins on the "AdWords" account.
22. I have never accessed the Google account for Jeremy Schoemaker and/or
Shoemoney Media Group, Inc.
23. I first leared ofthe SHOEMONEY mark on or about March 31,2009 when counsel
for the Plaintiff sent me a cease and desist letter. That same day, I made a change to the
"AdWords" account registered to John J. Farrell so that the term "shoemoney" is no longer a
keyword on that account.
24. Google Analytics is a free external analytics platform that is connected to a
Google "AdW ords" account and measures metrics such as e-commerce, sales, number of visits
and location of the visitor. In addition, Google Analytics can be used to filter internet traffic by
region.
25. On or about April 14,2009, I used Google Analytics to determine the number of
"AdWords" visits to ww.myincentivewebsite.com that were a result of use of the term
"shoemoney." I then used Google Analytics to filter these results to determine how many of
the
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Case: 8:09-cv-00131-JFB-FG3 Document #: 11-2 Date Filed: 04/30/2009 Page 3 of 5
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