good morning your honors your honors on the eve of valentine's day the issue before this court is does brighton have a monopoly on decorative hearts and the answer based on copyright law and the circuit is no and the court can reach their conclusion and one of two ways based on the the law in the circuit on copyright infringement there's an easy way juncture after several items i yes or how many of those who supported by want to buy the copyright five were five persons were alleged to violate the copyright either sorry question is which bags will and joint base of the copyright infringement which he asked for the group ok which to do we have pictures of the back of a enjoying basis something else which ones were joined because of copyright and i think actually probably the best pictures of them and the excerpts of record are under tad eight the the alleged copyright infringement purses one ninety one and there's a tag on one ninety two there's another one on one ninety three ok so one ninety one when i three is and here's here's i might not get around the trademark or and just if you want to know our pointing out all the photos the trademark the point in my because i asked you i know the trademark is on there the ok let me tell you why i thought it looked looks to me like your client took something that could only have been designed by looking at the carolina watch and and made this close a copy of this one could make without actually making identical copy well let me answer the question if that's a question is are they the same and why is this not a copyright infringement let me explain that for you first of all this is this watch is a useful item the hearts on these persons and these five photos and here's why first you have to start if you starting with the copyright issue with what kind of article is it and the case law and the copyright law itself tells us that some useful articles can be pure right and if there is an artistic design that's separate from the usefulness of the article ok and the case law tells us particularly if we look at say judge ward lowe's decision in the the watch case is the only one we actually court says you do consistent with ninth circuit law is you have to first say well is what kind of i don't use well i don't use full article pen we copyrighted if the artistic design can be separated from the usefulness of the watch the court then goes through and that you know i think her analysis i recommend it to the court because it seems to flow very nicely what the first thing you have to do when you're looking at the copyright of a useful article like a watch is well one of the elements of that article what makes that watch that useful item copyrightable and the reason you have to do that is you have to figure out what's the idea and what's the expression of the idea perhaps you should say if what you're saying is this is what is copyrighted here is the heart and perhaps you should look at the only hard cases from the circuit and see how that court decided that the heart couldn't deal it would quite frankly turn the copyright law on its head it would say that something that belongs to the public hearts squares triangles the number one the letter g exhibit and your honor and with all due respect this is exactly the reason that our g i s before this court is because what you're doing your honor is exactly what the district court did and quite frankly it is probably what most people would think you should do is you just look and you say oh my gosh they must have copyrighted that heart oh my gosh no one in america in the world could ever use a heart that has anything like that this time because they have copyright in that heart carolina then the carolina heart if you look at the carolina chart in the exhibits and the excerpts of record on twenty two the actual copyrighted photo and you compare state one ninety one one of the persons the court said infringed the copyrighted watch with hearts on it and you see the shapes of the hearts one is that  persons are made in china and the only evidence we have about the design is that when the court issued the order tell on our g i to stop issuing stop making the purs market only by the trademark line there is one and it's at the end of tab eight in the excerpts of record page two seventeen and the flame has a dangling under the one with analysis under the seat really has some flaws and quite frankly i think there are only two points on the trademark that the court should focus on and that is when the court went through the numerous eight crash factors the court said that the marketing channels used favors or g i but said that the proximity of the goods favors a bright now really those are kind of flip sides of the same point there they deal with the proximity of the goods factor deals with who buys it who buys it and the marketing deals with how do you tell people to come by the court so that one of those favored brighton and one of those there are four to six hearts on every person right and there's never more than two counting the dangling heart nonetheless these sheep cap gun poorly constructed leather purses would confuse someone that they might be a four hundred dollar purse with silver hearts and him and fancy leather appropriate frankly on or there's how closely you look and how close you are to observe maybe that you see the from another there are differences and shapes and sizes in the texture in the cap gun and a look of the hearts and in the silver hearts on brighton and providing i know there's no evidence that anyone could be confused when think well then if that's the case you are you would probably agree that it was an abuse of discretion for the trial court to find that the marketing factors would favor brighton let me ask you a question before we move to the respondent here but if judge hof is right on the copyright but in incorrect in her determination on the trade dress what difference does it make what difference does it make if she is right on copyright well then the sense of what the injunction did was cause her client to call the chinese company in time to stop making the persons the five that were copyrighted that were alleged to be an infringement on copyright if the court were to find that that was there copyright was wrong and think that the trade dress was a correct ruling out the other way around the other way around the other way around assume that the trademark is an incorrect ruling what difference does it make you make the big difference if if exactly how someone or they made goes back to the sea craft factors and you know the marketing point which really i think without dispute has to be an abuse of discretion so it does make a difference to a client that correct but the description doesn't say hollow heart it says a heart well but you know the heart is a pretty common design and he can't you can't i mean the more general you make your description of your trademark the weaker you make the mark a comment you know some of the most recognizable and famous marks are very common marks the playboy bunny the target target the nike swoosh the fact that they're common but that's what check mark not like a part of target the target target is a red target i don't know how it's described in the trademark description but that's how it appears in life well let's say somebody had a hard goods target and  trademark every heart you can come up with that well as good as attached to a strap dangling from a purse if you want to see pictures of brighton's trademark if you go to the color pictures that are in our brief so you gave us color picture but you can share with the program i'm not sure that's accurate your honor i won't concede that but i think sitting here today so i don't know was yes i think it's any side of the bag and also if you look at exhibit the the following page which are all bright and that's there are also some examples of the dangling heart some from the side side of the back some from the front of the bags but they're on every  of exotic or costly leathers things like crocodile and you know reptile they simply didn't copy that now they use embossed letters to get that look they don't use the actual expensive high but they try to imitate the look by as far as i can tell her act so it has a little buckle looking kind of hard about a quarter of the way down from the top in the middle right ok and  to judge half only a graph of the likelihood of confusion as it relates to the trade dress issue is that an abuse of discretion to have not considered whether it's inherently distinctive or whether the confusion and that's it didn't address any of the other well i think that implicit in the decision that we were likely to succeed on a likelihood of confusion  in maybe not in numerable ways but i think as your honor said before tens of thousands of ways i mean there it's you know you have here in addition to the holocaust you have the outline being three bands solid band in the middle band of the braided copyright yes but you know i believe without them that we still have our claims i don't believe we need to have this derivative work that's right yes i do consider it a derivative work carolina was a copy of work yes and then these  the bag with a hollow harbor copyright it that the story or you mean assume that there is a copyright on a hollow heart on a purse well i guess then we would have to look at it and person is that there is a copyright on a person with a heart that looks just like the purse the heart on the carolina watch