is maybe one of the reasons it gets the most business one of your opponents strongest arguments in their favor let's what argument is that that you're using day well they don't have well if that's the argument the argument that they're going to make think the particular fact that how the word is used is we don't do it in a vacuum we look at how it's used in the market place and that and the judge found that the word perfume value wasn't a top in their fanciful mark at all that the wor the two words a perfume bag was used it was our intent to rip them off the issue with likelihood of confusion not whether there was intent that's only one of the factors the issue is whether or not there's likelihood of confusion in the consider all the factors and it's difficult for me to except your argument that the district court erred because i think the district court really tried to give your client the opportunity to explore its market is i don't think i think that's completely unnatural i think if you read the word perfume day especially w w w dot perfume bait dot com you know focus on the authority supports your position that if perfume bay has been found to infringe and it's used that it's used as a domain name should be excluded from all the counsel table is my colleague frank goldberg i would like to address one point that mr st marie raised and then they give you a summary of the three points of of the arguments on with perfume hyphen this was a request that was made to the district court and was rejected there was evidence that the most common misspelling of the e bay trademark claim the facts were uncontroverted there was written exchange of promises performance by e bay and breach of perfume base promise to change its name and the trial judge barrett in concluding that because this discreet and forcible agreement was not a settlement of the entire dispute it could not be a contract even though it met all the legal requirements for one and this question is reviewed to no avail the second main point that i will discuss is the trademark dilution claim of the california law and the facts supporting this claim likewise for uncontroverted that's the problem of the generic plus bay names for internet market places and the trial judge even remarked of course it dilutes your name but the court followed an incorrect to factor test the likelihood of dilution under that from the seventh circuit that many key factors in particular the distinctiveness of the e bay mark that were in the controlling ninth circuit tast and thing versus track and are now contained in the new federal trademark dilution revision act and acted in october of two thousand and six after the briefing of this appeal was completed  trademarks are analyzed for for their commercial impression and in this case the court analyzed all the variously craft factors and determined that the can join versions of perfume bay infringe market now the standard for similarity in the markets looks at the total commercial impression of the appearance sound and meaning of the mark and so given that perfume bay in one word  court the clearly erroneous conclusion that the court reach was that adding the space in light of the all the other factors changed the commercial impression so much so that there was no longer a likelihood of two separate sounds in so i i don't understand how you can argue that the judge clearly erred used in the marketplace well certainly in the planned parenthood case and the berfield case those involved the internet as well if the space changed the meaning of the word then the commercial impression would be different  contiguous version of a contained in the market well i believe that's what the court did and i believe where the court error is that it didn't look at the totality of the factors for determining commercial impressions appearance sound and meaning and its march don't have to be identical to infringed that's that's clear and when you add a space of it will change the sound in meaning that will certainly change the commercial impression or if you take that you were together contract claim which is the simplest claim the facts one disputed the exchange of promises is contained in the very two thousand and three email screening force agreement i'm sorry but the agreement the agreement was pull the rug out from underneath your position completely you've obviously talk yourself into believing it but i mean this was part of a settlement deal and parties frequently say ok well let's talk about things we can agree upon we'll agree upon this will agree upon that will agree upon everything else but what about this and if this falls apart everything else goes by the wayside and that's what judge keller said why it's not wrong but that's but because in this case there was a discrete promise it's not discrete you cannot extract it from the context in which this was being done this was all part of an attempted settlement the settlement fell apart and you're trying to hold them to part of the settlement that they wouldn't agree to unless the whole thing was resolved that is actually inconsistent with what the facts are if as you'll see from the e mail strength when the parties would suspend the proceedings in order to have started with discussion even said no we are not going to suspend unless you first agree that you will in fact change your name and so perfume they wrote back and said we're strongly considering changing our i'm not sure that's a correct analogy but you must get rid of your nuclear weapons in six months and you say well we won't get rid of them for twelve months now isn't that difference in the time lag a significant difference in reaching an agreement because the parties had already agreed to the term for the name change reasonable that was a hadn't agreed to some very important parts which which mr samer is arguing today that they need a period of time a long period of time in which to make sure all their customers they can keep on board and and if that essential part of the green that can't be agreed upon i find it difficult to see under california statute a reasonable time will be impose the discussion that occurred after e bay performed its obligation and gave its consent the discussion about the length of time for a name change that was a disagreement that's the thing case which the district court expressly disregarded and since then this principle has been incorporated into the trademark dilution revision act of two thousand and six or the t with california and other states by imposing a likelihood of dilution standard for federal solution and it also provided something that was not in the old federal statute and that's a multi factor task for determining likelihood of dilution  was more likely to be intelligent and better of a higher income then a shopper in a brick and mortar store the district court didn't make a specific statement as to which side that favored but in any event that is not erred is in using the wrong legal standard for dilution and misunderstanding that test by applying an overly strict standard for similarity apply the eli lilly seven circuit test the prozac lilly itself really court referred to the similarity of the marks and itself considered distinctiveness of the word prozac and relatedness of project products in determining that the marks were similar in its likelihood of confusion analysis which is imported into its dilution analysis now the same court indorse the second circuits the with the best go versus p f brands the goldfish crackers case pro the similarity federal dilution revision act fifteen us eleven twenty five c which also includes the degree of similarity not identity degree of similarity between the marxist extent to which the use of the famous mark five years to find actual confusion i just some you looked hard you couldn't find any because there's no evidence of actual crime there was evidence that actual infusion is not required for john i understand that but you didn't find any evidence of confusion we did submit evidence of actual confusion had actual socit sion in that people were calling perfume back and stating are you associated with the we have in the courts record newspaper reporter making the same inquiry why ask why is an inquiry actual confusion now have you waived complaining now on that issue well no it's a legal question it would have been the failure of evidence was really on the part of perfume bay for not producing evidence that there was any actual unclean hands on the part of you didn't they produce enough to throw it over to you to rebut what they had demonstrated actually they really didn't there was simply speculation there was they are they what they offered was a screenshot showing that when rule twenty eight letter shows does not create a basis for agency that was the only evidence that they offered and then the rebuttal evidence that we provided the testimony if you base marketing executive showed that this this doesn't come from me and even if it did where's the confusion so clearly there was there is a failure to show evidence of inevitable conduct on the part of evade and it did not relate to the subject marketplace where i can get this product i don't know i would i walk through your purpose of the hypothetical i would say yes to our people are there people who are here not see bay and say that's either the same thing and not that it's related but they they think it's the same work that's telling on the internet electronics to the entire i'm convinced all did in creating a fanciful word for their electronic sales on the internet hasn't for finding unclean hands and then issuing a junction that had not even been asked for until i die i don't i believe that's just a general authority of a district court judge if you see something wrong that's presented in evidence and falls within the defens