that contain the pictures of the coupon so i think their page id sixteen sixty four to seventy six and if you want to refer to those we have in front of us certainly your honor your honor has already found them and you know that i think that's more than fair that all of those books are in the record and we certainly understand where you're going with the motion sir please proceed good morning your honor sir please the court and keith was lasky here on behalf of the appellant's michael scott ward print venture inc and we do fund raising our collectively faired on a communications essentially it is a david versus goliath style intellectual property claim here we are before this quiet a goliath would be knox county and the taxpayer funded school system involved that we allege is infringing upon the intellectual property rights of fair and on a communications and specifically we've gone claims involved for trade mark infringement trade dress infringement make the donations are confused or is it the people who who are advertising using this method that are confuse all of the above your honor i don't see understand it taking one of a time i'm not seeing how either one of them is confused and certainly first we can talk about the merchant community church and community when the person comes in and says i want to sell you these he knows that it's either this county or that he knows who's asking for well what happened in when the right no your honor if to who it is that's coming in and asking for as and advertise there is some blurring of the lines here your honor actually and this relates back to a february two thousand and ten letter that was sent out communicat the merchant community by knox county they said in that letter to the merchant community that they were rebranding school coupons and that knows it's knox county they don't think it's somebody else well in in the prior years there was a collaboration between knox county and ferret on a communication so the two had presented a unified front using the various trademarks and trade dress and i understand how that might lead you to say that there was some unfairness here and switching whoever they had doing this form but i'm just not seeing how how these merchants are being confused well you know what's going on right there is a letter which explains them what's going on up actually letter it's not like these these things these coupons are confusing as to what's being offered i mean if it's ten dollars off at a restaurant or something like that the that's not being confused right the extent of the evidence of the confusion for merchant actually can be found farragut to participate in their now competing books even though the relationship had originally been through farrah donna very good pop up wanted nothing to do with that money anymore in fact it was very much a confrontational type of exchange that was upset they thought that they had been deceived while that they were of the impression that they had been approached first when the competition happened by farah donna and they were ready to sign the line until they had heard from knox county and well now that we've gotten this information from you we're were upset we're we're thinking that we are being deceived that here they are coming to us saying that there was a prior relationship and now you're coming to us and that entirely shows confusion another way in which confusion happened your honor it certainly focused on the distinctive what would tell us focus on the distinctive element of this mean we've got these things in front of us what what's so distinctive certainly iran has i think maybe behind judge rogers questions of an instinct i have about this which is every community has these things this is not an unusual name school couponing i mean your idea that oh people might think this is vouchers to pay for the school sounds borderline preposterous i think most people understand school coupons this is what this relates to so there's nothing unusual about the name so where where's the distinctiveness in what element of the design certainly and first dealing with school coupons again it is our linguistic argument that the coupons modifies school in fact there are three different sort of levels of distinctiveness in terms of whether it is merely descriptive whether it is totally generic or whether it is it has a search an intrinsic distinctiveness really the district court found below in the middle ground that it could have w distinctive i just want to hear what's distinctive forget the test tommy sure look at it and go ok i see what you're saying i'll say i don't think so certainly i can these does involve a little bit of difference because i've got both trade dress and trademark claims on the trade dress what you see there in terms of the presentation of the front cover of the booklet for example logo in middle sponsors around siding you've got the picture of the little girl on the front who happened to be a top seller from the prior year you've got certain bold or sort of the fading there the color fade across there there is a uniform type of presentation shown on the cover of the book from year to year of school coupons that is very different from the kind of presentation that you see in other years from other varying books some of them have hand drawings of pictures some of them have things that look like checks and it is in that uniform i think every single one of those things are the kind of things you would expect here and some pick some some pick others i mean there's maybe a hundred options and some sometimes pick those sometimes others pick the others but then there's nothing unique or distinctive about it it's school related so you're going to ski school youth type things or you particular books had been in the community and using that particular branding for well on about fifteen years they had sold over one hundred fifty thousand books per year they were consistently it was the main fundraiser of several school districts in the area that merited news coverage on a yearly basis when they were about to be released this was something that was known within the within the community as the premier fund raising activity for the school system mr ward himself was essentially lauded as a hero for at the time for being the guy that developed this and was out there really pushing it deeper within the books if you were to look  upon poor coupon i believe there are a few examples in i believe it's exhibit one that were attached with the original complaint what you see is a particular layout to the coupon in terms of color styles in terms of text and language and as you go from coupon to coupon within the school coupons book you'd find that you'd have a relatively uniform presentation across years for that and that same presentation unlike say a quarter page tear offs or unlike check designs things that are graphically clearly different what we had was knox county essentially mimicking the design and branding that had been developed over the years by fareed on a communications by using the phrase school coupons yes your honor it is on the supplemental register so there is some degree of for that mark i would have thought the supplemental register her choose the presumptively they refused to find it distinctive which is that it's on the supplemental is supposed to mean register there is however your honor a provision that allows that presumes after five years of continuous use that a supplemental registration can be brought over to the principal registration and in fact there was was it never was correct your honor the reason for that was that at the time that the five years came up it was originally on the supplemental register in one thousand nine hundred nine things with knox county were going relatively well and in fact at various points knox county had recognized that yes fair donna communications was the proper owner of that trademark so essentially he didn't do it because he thought that the most likely person to come in and infringe upon his mark was actually endorsing him he had that in various forms of writing and it is also  position over and against knox county so unfortunate as it may be i love to be here now on the principle register your honor but it was essentially a business decision based on the the sense that he got  from knox county that he was in position and i would ask you to find essentially in a stoppel argument that knox county having acquiesced to him before as being in the the senior position cannot now now that they're in litigation and suggest that they are somehow in a senior position or that the mark is indefensible there are writings in that february five two thousand and ten letter that february sixth two thousand and ten draft letter where scott bacon who had authority over the program from knox can his perspective in writing on you know without solicitations says that ferret on a own this particular trademark would you vote you have applications for both trademark and trade dress on trade dress there's actually an additional distinction based on the two pesos case in which there is the possibility for inherent distinctiveness which goes does not even necessarily require secondary meaning now there is a little bit of back and forth on that through the abercrombie case but i would suggest here that you can look visually at the coupon books and definitely tell what the the particular branding is for school coupons you don't have any consumer survey to prove no we do not your honor and again of course this is partly because leading up to the case until things went south they they they lost the contract but the problem your honor is that outside of knox county there are several other surrounding counties that fared on a sold in two for example bridge in anderson county severe county as well gatlinburg pigeon forge the problem is that once knox county which is the dominant county within that region pulled the plug and then started selling into those other counties by approaching directly principals in anderson county in severe county what you then had was basically the business of pharaonic evaporating because not only had he lost that contract but they were when the when the seven year county housewife buys one of these booklets certainly there is a split and what happens it's a ten dollar booklet so when little susie comes to your door your honor you pay her ten dollars to get the book  in or two dollars might stay at the local school five dollars might stay within severe county or additional monies might then be forwarded back to knox county kno county actually received payment from the schools in anderson county and severe county and so forth when when those outside of knox county schools started selling the books yes here on was confused the the merchants were confused they didn't know what they were doing with what was going on the parents that were buying books didn't know what was going on there were in fact several newspaper articles in the knoxville news sentinel please the court i'm in the retailer here today from the knox county tennessee bar representing knox county schools and knox county tennessee and i just want to address a few of the points briefly made by the appellant there's reference today in reference in the record or in his briefs to a news report in which the media showed a copy of appellants coupon book when discussing the knox county coupon book and the district court court actually excluded that news report from the record which is why if you try to find that video you won't be able to locate it appellant discussed knox county selling coupon books to outside counties actually the record will show that all knox county did was take its excess inventory after it had already finished its campaign and it would offer that the excess coupon books to the surrounding community when their kids sold them they would get all the money i believe knox county still got a small portion of that the fee of the book and that was just to handle knox county's administrative expenses in running its program so the coupon book sold for ten dollars but the school probably got to keep the severe county school using your example from earlier severe county probably got to keep eight dollars and then knox county might of kept the other two to cover the printing and the binding and the coupon books and things like that but again that was only after knox county had already finished its own campaign it wasn't it wasn't done to expand knox county's presence in the market it was merely done to get these books off our hands that we can't use next year because they say two thousand and ten two thousand and eleven one of the first questions your honour's had for the appellant was regarding confusion where's the confusion where's the confusion and that's the same point we make in our briefs appellants have come forward with no evidence showing that the actual end user consumers were confused by the existence of knox county school argument today is that the merchants are he's come forward with with minimal evidence of perhaps one merchant who might have been confused but i believe there's case law stating that you know minimal instances of confusion you know one or two here and there is not the type needed to me to meet your burden of showing confusion and again to the extent any confusion did exist that was at the very beginning of the split when notts county took the program back in house and  doing it themselves and that's why knox county took the steps to do things like saying we are rebranding they actively wanted to prevent confusion in the marketplace so they put out a couple of press releases saying you know rebranding this is our book there's going to be another book on the marketplace just be aware of the difference between the two books and then a few more facts that the appellant didn't didn't mention is that knox county actually started its scoop coupon book program in one thousand nine hundred nine mr ward the principal affair donna testified in his deposition that he was not in the coupon book business in kick off our new campaign this year it will be called school coupons it wasn't until the following year that knox county put out a bit for printing of this group coupon books fared on a placed a bit was awarded the contract  and at that point mr ward testifies that he began using the mark school coupons so again that was one year after knox county had already introduced that on its own before any involvement from m that letter would have gone out the in two thousand and ten after the contract expired with mr ward at the end of the two thousand and nine campaign i believe that con that letter would have gone out to every merchant that participated in the program the following year and again not only did the letters go out saying we're rebranding but before knox county kicked off their campaign they did put some news releases in the media saying get ready for the for the new coupon book campaign this year it will be called this because we are rebranding and knox county it really is the coupon book campaign for the school system i can't emphasize this enough is a big  deal the county spends a lot of time getting ready for the program and the kick off it really is a celebration they have one school that that like the the lead school and they have a big party that day and the teachers dress up in costume so  community is very aware of when to knoxville the knocks how they claim to be the senior user of the school coupons mark to the extent mr war or the plaintiffs claim that they have priority to the name over us we do the the record is pretty clear that in one thousand nine hundred three for the ninety three ninety four campaign knox county rebranded from the year before that the campaign was class coupons knox county took the program back in house and rebranded it to school coupons and plaintiffs spent a lot of time making the argument that well they never contested our our registration of the trademark what was our position that we didn't have to we were using it first so if you want to go out and register it that does not restrict our rights as a senior existing user as the date of his registration and also and his registration for the supplemental register he has to state the date he first used the mark what do we need to the side at issue of who is the single user in your favor in order for you to prevail i don't think so because as we set out in our briefs you know the the record is pretty clear that not only did plaintiffs not meet their burden of showing secondary meaning but even if they had met their burden of showing secondary meaning they still have to show a likelihood of confusion and there's simply nothing in the record that shows confusion they didn't do any consumer surveys they didn't do any consumer polling we don't have any consumer testimony all we really have are our plaintiff's self serving statements that we used them are for x number of years and you didn't contest it therefore were involved with with the program but you know we're a county we can't just give you a contract indefinitely it has to be rebid pursuant to the guidelines and so when when  plaintiff's contract expired it was rebid and they weren't the low bid so they went with a different printer would look at some other point to talk to questions were asked about distinctive you have to identify specific elements of your of your dress that lead to the public to a den of your product and in our case evidence of that just doesn't exist the trade dress features that plaintiffs rely on in this case all exist to make the book more useful or appealing things like colors and and  pictures all they're really there to do is to make the books look more appealing the majority of the sighted tried to dress elements are functional the size of the book for example serves a function  you also have to have to show that the trade dress like i said is is non functional and for example the picture of the student on the front cover with that serves  function that rewards the top seller of the coupon books for that year so i believe that the district court correctly determined that plaintiffs have not stated a claim for traitorous infringement  mr the plaintiffs also state a week claim for copyright infringement plaintiffs an expert stated that plaintiffs could not state a claim for copyright infringement because there's too many differences and not enough similarities between the two marks the district court said the plaintiffs haven't stated a claim for copyright infringement we obviously agree with within that instance with plaintiffs an expert's opinion that there's not a claim for copyright infringement so it's simply put this is one of those cases that we clearly feel never should have been filed knox county enjoyed working with the plaintiffs over a number of years that was he also someone who was out there negotiating for the for the first american bank for instance to put their coupon in there he himself is actually not a he doesn't have printing materials he's kind of like a middleman he outsources all of that to various and puts it all together which is why knox county if you live together what do you mean he gets the different element he arranges the print as i understand it you print somewhere and then you might find it somewhere else and he doesn't own any of that he's a middleman knox county figured out where how we can save a lot of money by not having a middleman too bad they didn't figure you will see your man who's to various elements onto a particular coupon going off of what's in the record mr mr woodward testified that notts county was responsible for handling stuff within local local recruitment ok and mr ward because he had this vision of creating this national company he wanted to go out there and get national companies and big time people to advertise in the book so he could get friess his compensation or is he just getting a poor per book kind of compensation that's not in the record it i doubt would increase it because he's doing a million of them instead of thousand of them but it's basically right production he was or is it isn't like a p r firm i believe he was paid a percentage of each book sold so each book sold so he might have gotten ten per book so but none of that was actually built into the contract between knox county and fair donna those contracts are in the record and those contracts specify that he is being contracted to handle the print printing of the knox county schools coupon b now he might have done additional things on on the side because he was trying to get this thing to go nationwide oh my questions go to the issues i was trying to get ok i understand going under stand  successful before during and after plaintiffs involvement we believe it's going to continue to be successful even without plaintiffs on behalf of knox county and the thousands of of happy schoolchildren that are so get so excited every year your honour's please the court very briefly nine hundred eighty nine doesn't matter i'm not saying that knox county can't sell school coupons i'm merely saying that they can't use it with the marks and the trade dress that faired on is using the hundred ninety three book was not called school coupons it was actually called head of the class it's the one nine hundred ninety four book that is first actually titled school coupons and that was the one that involved faired on a communications th no problem your honor are the parts of the super so called infringing works are not functional and i just got it right in front of me and certainly there are different types of of functionality there's essentially a de facto functionality versus a deja functionality essentially it gets into does the article accomplish its mission but also that the deja is more of a if there is a particular commercial advantage that makes something necessary the great example for them six circuit is the traffic's case involving a spring on traffic signs when you look at the front cover of a school coupons book the graphic design there i would say that none of that is actually functional there is no necessary non reputational commercial advantage that is is given off by that branding  all of the advantage to that branding is reputational oriented it's the trade dress of the good it allows the the user to know who the source of that book is and there's a very family i think the graphics are that similar the graphics are actually quite similar in terms of the theme in the overall impression that it gives and the best way to pick that up your honor is to view that in contrast with the other books for example the kids count kids first and so forth and you can see that school coupons and the nocs counties book are are much more of the same g as opposed to all of the other types of coupon books that are out there some are of the slim jim style others look like oversized library books there are literally millions of ways to do a coupon book and it just so happened that knox county decided to do the way that mr ward in the appellants were doing why because there was a commercial valuable reason to do so he built up the customers and they stole and that's why we're asking your honour's to reverse the