overcome that that's that's always a pretty important point for trademark law if your honor but the way we overcome it is in direct answer to judge wilton's question which is if they lose the gift giving in fair weather fan fair weather fans gift givers on the very end in the middle of their regular famous students along there they wouldn't be actually confuse there's a difference in the law between actual confusion and likelihood your own and there are many reasons here why there might not be actual confusion such as it's usually displayed with the the team colors it's usually displayed with team logos it's usually displayed in ways that  militate against the confusion but when you have legally identical marks don't we have to weigh that heavily in the different question of whether there is a likelihood of confusion not here your honor and fair weather fans go away the finding by the t t a b is that everybody else would be able to distinguish the marks and therefore if they would be able to distinguish there's no likelihood of imports are likely to result in material injury to the domestic industry the legislative history subsequent case law and it appears all parties to the section agree that the primary purpose of cumulation sunset reviews the commission has discretion whether it's accumulators imports our position has consistently been that that discretion is not unfettered that the commission in exercising its discretion must do s consistent with the purpose of the statute that it is an examination whether subject to courts will have a camera in effect on the domestic industry so that that it doesn't have an alternative purpose of considering the conditions of competition and they're likely to compete with each other right correct why it's no basis to sustain exactly what they've done they have merely made the judgment that korea and germany compete japan canada and the rest not the commission is free to exercise its discretion and a few additional factors which could be relevant to the conditions of competition so long as it meets to require one that it's relevant to the online purpose and strategy and two that they explain they provide a reasoned discussion why these factors are relevant to the purpose of the governing statute because if it doesn't say really it turns the agency in twelve discussion that goes to the central primary purpose have we ever argued that there is a lack of discretion by the i t c it's just not unfettered discretion they cannot use to humiliate for any reason or no reason whatsoever that the supreme court has been very clear that the exercise of discretion by federal agencies must be consistent with the language and purpose of the section it's important because but the congress not only gave them authority to determine whether there's a likelihood of limits that discretion i'm looking at sixty and seventy five here what what limits their discretion it's not on the face of the statute itself your honor its longstanding precedent of the review court for example there is nothing in the structure itself that specifically says the i t c should not administer this statute corruptly but clearly that would be an unlawful exercise of its discretion similarly if it did so in an arbitrary capricious manner that would and unlawful exercise of its discretion we maintain that the exercise of it's just stretching divorced from devoid of the congressional purpose it's also on  result contrary to policy is there something actually factually wrong with the result that was reached yet let me explain why what we didn't talk anything about percentage of time for the image of competition there now we want to bury him or any of that we think this present straightforward legal issue we had some factual challenges below what we wanted to present to this court it's a straightforward legal question and it's good to give you a sense of what's wrong let me explain what they're actually what happens is that  judge radio had a question about you know there is language in the statute about how they have to find that there is competition here they did in fact find that that study factor was meant that there is a reasonable overlap of competition they also found that imports from every subject country would likely have a discernible adverse impact so those two statutory factors which are the two thresholds for accumulation both of those were fact there's no objection to that what is happening at that point is the black box what they have done is they have taken the word may and they have expanded it to represent a practice whereby they can these countries for australia france and japan had been a steady decline and how korea and and germany had continued to incline they talked about the larger impact of the market of bones to the lesser lot of data on these countries they can always find differences between country a country they can always say they can always point to some factor that's going to distinguish punchy from another country the point is we don't know going into it what factors they're going to look at we don't know what factors they're going to find relevant we don't know what the standard is as to how they figure out which factor is relevant the division between australia france and japan versus korea germany no have three that is my question why wouldn't you say there's a difference but not that big a difference or whatever argument you want to make because it's literally not possible to brief all the potential combinations of countries that they they could have come up with  mean no one i mean just thinking about is a pretty big distinction to going up and down but there's a lot of other evidence and there's a lot of other distinctions in the record for example japan as you  know in the original investigations they were much bigger player in this market say than australia or france in germany or in europe where is japan and career in asia the point of it is they've interpreted this thing in such a way  you're out of the way it works is that we we follow our pre hearing brief they have a hearing then we file a post here and brief then they decide no one knew until they voted no one had brief theory if there were a group of companies like this by company countries and four of them had made vast efforts to improve and had declined vastly and one of them had shot up you would hold the war responsible for the actions of the one country right but not necessarily what you would describe at least the commission of the discretion to take that into consideration with or without respect your honor i don't think so all we're saying well what are you saying all we've said you want to all together no what we've said is is that we need from this court we need a legal standard that we can that we can brief to and that you all can review we don't create legal standards that's in the statute and it says to me what the statute read in we think that that is a basic principle of statutory interpretation that they cannot exercise their discretion have to decide what's going to happen once the orders are revoked if they come a out and they say we've looked at this and we find that they will compete with each other and we find that  country will have a discernible adverse impact but based on these factors we don't think there's actually going to be a combined hearing effect that's a decision that they the courts could review that's a decision that we can sort of brief and standard that we can brief to and that's consistent with the legislative purpose of kindle a ship you know right now that's what we don't handle what happens is they come out and korea in germany so what's your answer to their waiver argument well i think that if you sort of couple things first of all one point that was made at the hearing was well canada might actually ship more than the other  we said very clearly at the here we said you can't somebody on the grounds that they're going to have more of a hammering effect so we made it clear that the hammering affecting our credit was something that the commission should consider and the other thing to be honest honor there wasn't a way for us to know what they were going to do our generation is not to the exercise of discretion it's not even really to the conditions of competition or looking at competition conditions of competition in order to exercise your discretion our objection is applying discretion in such a way that we can't know what's going to happen and we can't know what they're going to say  is david fish berg and i am here today representing the international trade commission in this action issued before you today as well as wed the commission's consideration of likely conditions of competition as part of its  permissible interpretation of the statute courts with the law the simple answer to that question is yes the commission's key once you've decided that they're likely to compete how do you get around the likelihood of hammering affections well in other words if you were going to make this decision shouldn't you decided these three really don't compete the same way as france and as as korea and germany judge radar posit that that's exactly what we did five we found that there was an overlap competition a certain baseline of competition between all the countries that got us past this likely to compete language in the statute which is an exception to keep religion but even if congress made very clear that if you were fined that the commission as you pointed out still may cheat really doesn't require us to keep really and what the palace have done in this case is they've tried to transform language f present injury determinations where congress made very clear that if these two factors are met you shall accumulate and try to put that language into sunset reviews which is a different a little framework than present injury investigations where are reviewing course below have recognized that the commission therefore has wide latitude in terms of the factors it looks at for the commissioners to therefore exercise discretion in the end and the term and whether or not it will a any of the countries together and it's the role of the commission to look at the record evidence imagine that looking at the record evidence before it and saying these countries are competing in a certain matter therefore we're going to  first of all your honor that's that's not in the statute that if congress wanted a place you know what i think the commission to look at a specific factors it would have put it in the statute but of course there is the standard that that our viewing courts use it's an abuse of discretion standard looking at factors at will have a bearing on how these imports are likely to have likely volume and price trends for these imports in the market and this is not a new or novel theory that the commission just came up with in the very first sunset reviews back in one thousand nine hundred ninety case sugar from a european at all the commission laid out its analysis very clearly and said in a prospective analysis the commission is going to look at halloween imports are going to compete it's to look at such things as differences in volume and price trends and you know this has been very clear for for for a palace to come and say it's a black box we have no idea what the commission is going to look at they do have any idea that it's a very finite number of factors that the commission looks at and in this case the commission looked at factors that the parties argue to us appellants themselves set up their briefs in a manner where they addressed whether or not it's such a import going to have a discernible adversary that whether or not they were likely to compete and then they just conditions of competition and they argue to us they're all going to have similar conditions of competition and responses came into the commission are you know none of these countries are going to have similar conditions  already to us by the parties in detail discuss those factors and then came to a conclusion is generated pointed out that these three countries show interest in the u s market while while are these two countries germany  commission might cumulate or divide i think every party like to know that i'd like to know that in this court i don't think it's unfair but just tell us that the standard is that the party or to make an argument that there's a black box that they have because they likely to happen it's a counterfactual analysis because there's an order in place so there's a there's it there's a degree of speculation and predictive predictive nature in this analysis so what the commission said is we're going to have further analysis to assure ourselves that our cumulation decision is not just based on inherent speculation that is actually tied to the facts on the record it's tied to substantial evidence that the that the parties are arguing that how it affects language that a palace are pointing out issue that we have what appeals compensate the sort of purpose of congress to address hammering that we do not think that that's the case as we point out in threat determinations which the commission had been doing since the late one nine hundred eighty s it was also mutilation and i think the commission laid out very clearly what its approach was going to be so that they're not quite they're not looking at random factual distinctions they're looking at specific conditions of competition that bear on likely future volume trends in likely future price trends and now that we have ten plus years of sunset review precedents out there it's it's really quite reasonable to expect that you can look at what the commission has done in the past frame your arguments in the light of the specific product and industry which you're representing and argue from the respondent perspective that the conditions of competition affecting were particular industry are in fact quite different than those affecting any other country any other country and what about japanese response is to attempt to get the commission to look at the japanese respondents individually i am most familiar with the conditions of competition to affect those producers i can argue as to our trends i can argue as to why we believe we are differentiated from other countries that are subject to the review but in the final analysis it's the commission that is looking at the entire record and it's within that mean it is particularly within the expert judgment of that agency to draw whatever conclusions it believes are most reasonable on the facts and he didn't care grouping or think you favor it or not that's a that's frankly outside the scope of of our will on that but it's well but then the commission's exercise of its own description be consistent practice of the statute consistent interpretation by the commission of its governing statute on grounds that were never presented to the i t c for decision it implicates both of the core reasons that there is an exhaustion doctrine both to protect the authority of administrative agencies to announce its own rules and explain its reasoning and also to promote efficiency of judicial review and by you mean where you're referring to it a waiver or if i  exhaustion in the sense that i do not believe that the appellant's ever said to the commission that we believe your can your consideration of conditions of competition without an express tie to hammering would which relates to a comment where her as counsel represented the domestic industry argued that the canadian imports would have a heavier impact due to their higher volumes and that they would have a greater hammering effect for that reason but i don't think that's enough to put the commission on notice that their entire analytical model was being called into question and it was specific to canada canada the you know the because of commissions determination with respect to canada is not even on a broader argument about the commission's overall statutory interpretation and i will confess that when i reviewed the u s steel post here in brief sight i could not see that that argument was raised at all it was actually the part that they cited appears to be a response to a question asking about whether material injury would be likely to reoccur even if the commission chose not to keep any of the company of the countries so we don't think that that's that that's there we think this that we think that essentially all of the conditions of competition that the commission found persuasive in this case were x ones actually raised in the briefs by the parties so that if any pooling through responded you know the the what you've heard from the other side is that we look at a lot of conditions of competition and that these conditions of competition can lead to differences but what you have not heard from the other side is what those differences have to do with  of cumulation let's assume for the sake of the record that imports from australia france and japan are going to be lower in volume than imports from korea and germany the whole point of cumulation is that you small volumes of imports from different countries can add together and have a hammering effect on her domestic producers the mere fact that some countries might ship fewer imports and other countries has nothing to do with cumulation and this is the whole problem all what we are asking is is that if they want to d q they want to exercise that discretion to d q me late they have to explain why their decision has to do with the purpose of  on page twenty six of our brief for example we cite a brief that they filed with the i d c at the cia t in which they acknowledged that the hammering effect is a purpose of cumulation but that they don't consider that as something that they necessarily have to address that is the whole issue here i'm sorry where it's on page twenty six of our brief where we saw them to agree that they filed with the court of international trade and that's the whole issue here if when all we ask is that when they exercise this discretion to de cumulate once they found there's going to be an overlap of competition and once they found that all the imports from every country are going to have a discernible adverse impact give us an explanation about why the elmer hawkins is a vietnam veteran who was exposed repeatedly to agent orange he has very masti ailments it's difficult for him and i've described it in my n disrespectful have played games and have ignored