Case: 8:09-cv-00131-JFB-FG3 Document #: 11-2 Date Filed: 04/30/2009 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

SHOEMONEY MEDIA GROUP, INC., ) CASE NO. 09-cv-00131

Plaintiff, ) )

vs. )
KEYEN FARLL and JOHN J. FARLL, )
)

)
AFFIDAVIT OF
KEYEN FARLL

Defendants. ))
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 2 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 3 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 4 of 5

"AdWords" visits originated from the State of Nebraska, and of these, how many resulted in a

sale on ww.myincentivewebsite.com.

26. There were a total of eleven (11) "AdW ords" visits to

ww.myincentivewebsite.com from Nebraska that were a result of use ofthe term "shoemoney."

27. Zero (0) sales resulted from the eleven (11) "AdW ords" visits to

ww.myincentivewebsite.com from Nebraska that were a result of use ofthe term "shoemoney."

28. I also used Google Analytics to determine the total number of "AdWords" visits

to ww.myincentivewebsite.com from any of the approximately 20,000 keywords in the

"AdWords" account. I then filtered the results to determine how many of the "AdWords" visits

originated from the State of Nebraska.

29. Of the 85,256 "AdWords" visits to ww.myincentivewebsite.com. only 180 or

00.2% of the visits were from Nebraska.

30. The total number of visits to ww.myincentivewebsite.com. whether from

"AdWords" or otherwise, was 90,033. Of those 90,033, just 200 or 00.2% of the visits were

from Nebraska.

31. There have been a total of 675 sales on ww.myincentivewebsite.com. Of these,

three (3) sales were from Nebraska. None of these sales originated from use of the term

"shoemoney. "

32. The total revenue generated from the three (3) Nebraska sales was $61. This

represents approximately one half of one percent of the total revenue generated by

ww.myincentivewebsite.com.

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Case: 8:09-cv-00131-JFB-FG3 Document #: 11-2 Date Filed: 04/30/2009 Page 5 of 5

FURTHER AFFIA SA YETH NOT.

~~~.
SUBSCRIBED AND SWORN to before ~e tlùs1 ~ day of ,4Prt /
. ,2009.

SABD AiN..,."" .~ ~
Notary Public, ~:a~rh2 /Notar Public "
QUalM~d ~~AaueB~:~~~~
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