disparage a possible trademark and logo asserted by the free cycle network r t i that was this case brought into the lanham act and in part yes your honor is there any trademark was the one that talked about state law theories and although a couple of district courts have noted that people pleaded such claims no one has ever explained how full language or the logic or and in fact any case could support such claim so there is no basis and that's one of the problems one of the significant problems here is that what is in joint here is nothing more than the expression of an opinion on an unsettled legal issue one that's being litigated here in the northern district a troubled by the lapse of time here the injunction apparently was issued on may eleventh two thousand and six and yet we're only getting to argument on august fifteenth two thousand and seven was there any effort made immediately second there was an extensive mediation process under the auspices of this court i wasn't personally involved nap but i believe there are at least three sessions maybe five so those are the perfectly free to say no to the question that i'm about to ask would you be willing to sit down and let the other side explain the justification for the injunction and see if there were any remainder of your time for problem let's hear from the other side disparagement claim was brought and the court which perfectly to talk about it's the perfect in case that we cited in our brief only see three factors and analyzed and the reference to the street craft factors which is the age factor test which we routinely require in preliminary injunction cases advertising or promotion yes misrepresents the nature characteristics quality or geographic origin of his or her or her or another's goods services or commercial activities that's correct i think if the disparagement is specifically addressed in this as it is in this case at the trademark itself and false statements are being made about it first of all there's no mark right i  i believe there is a mark well that was applied for know under common law under common law there is a mark there is a and an action for trademark infringement even though it's not registered  fulfilled at this point it was not challenged that it was not the action those factors were not applied by the fact of the matter is is that this mark is inherently distinctive it is arbitrary it all the things that are required for there to be a trademark this marked in bodies let's assume for the purpose of my question that there is a mark and thinking even a greater leap from my point of view that there is a trademark disparagement action under the lanham act what did mr we do to disparage this mark actually did  he knew that registration was not required to have a protect will mark and that's an excerpt of record on page twenty one in which so how is that a false statement the false statement was he was telling the public because there was not a registration it was not a there was not a mark to be protected so i thought you said earlier that he was simply saying that it was never registered now is that it was not protected will mark because there was no registration he knew as a matter of fact based on his previous communications that registration is not required to have a protective mark and i say that's an extra record on page twenty one the other statement that was just false was he was stating this was a generic mark and trying to encourage other people to use it as such he had given previous communications which he said it was a protected will mark that this was a protected trademark  real trademark the mere fact that he was trying to solicit people to use this martin generically would only give a fact finder one reasonable conclusion it was not generic at that  state publicly his or her opinion that and yet to the registered mark should not be protected sure i think i think someone giving their opinion trademark and there are unlawful ways well what did we do the departed from what i just described what he did was he was trying to manufacture evidence to make the mark to destroy them or to make him balance it wasn't he gave an opinion that hey this i believe this mark is generic that wasn't it so he has no right to say to people when he thought you believe this right is not protected and if you believe it should that and so that's not the facts of this case the facts of this case are very specific and uncontested he was the free second network's trademark guy he was in charge of setting up the trademark policy the policing of the trademark he wrote numerous communications saying this is a valid protected market the moment he becomes a disgruntled employee and gets ushered out the door he starts to competing business and starts trying to denigrate be one of the primary assets of this company what may define evidence what did we do that se this trademark in a generic s register the their groups outside the free second network using this mark do any of those statements mention any competing service or product it to some degree it was talk about you can save your own network and your own recycling group without going through the free cycle network using this mark so yes he was talking about putting together competing networks and competing were used in commercial advertising or production i think the i just mentioned would be considered commercial ad warning on a website making as the statements that he did constitutes commercial advertising or promotion it was trying gerry support for his is group and other like minded groups is it fair to say that that what he was doing was trying to generate support to oppose the registration of  evidence to support his case in northern district california and that's prohibited somehow it is if you're doing it in a way that is false and misleading telling people that that uses generically because they don't have a protective mark when he knew the fact they had to protect him or he was giving false information so it's more like slander of title or something like that rather than a technical violation of the copyright laws infringing use i don't i don't get it i'm sorry but i don't get it if he's using free cycle as a name of his organization which he was he was calling it ridgeley recycle  to try to confuse the public think this is the free cycle network if you look at the x the actual facts in this case mr we admitted that this was a very viable market people associated this market with the free cycle network and the good service and the responsible organization that it was he was trying to so she ate groups that are not part of the free second network with the free cycle network what's the website of your client  the fact of matter is is that at the very least even if this is not under forty three a claim the judges forder here is very specific and don't he's not engaged to our knowledge anyway in any unlawful speech over the past year he understood what was required by the district court don't disparage this mark the di court found this is likely to be a protective will mark so the fact that he's abided by an injunction that is currently not binding on him we should hold that against him and i think it should be held against me are about understand that he understands the scope of what injunction is requires the scope of this injunction is very clear as to a very specific activity this is not a broad sweeping injunction it's very narrowly tailored to the very specific activity and behavior that this defendant engaged in and since that time he has ceased his activity infringement by mr we or anybody else using the word free cycle for a mark to designate the source of a good or service there's nothing there and the district court repeated the elements without citing any was a lot of evidence that in fact this word had been used generically before a sort of its trademark interest was the district court in title think why i don't buy that well yeah but he wasn't entitled to preclude all public debate on the issue through an injunction if prior restraint on speech wasn't entitled to do that we are allowed in this country to dispute legal issues including the assertion of a trademark claim that were even allowed to criticize decisions  decisions of the courts not allowed to use a finally if you take a trademark and infringing matter but that's not what's happening here there's no evidence of that we're allowed to change our minds you know we mr w he's not a lawyer for one thing at one time thought another thing at another time you know is he was he correct in saying that the lack of registration by itself meant they didn't have a valid trademark well that may be an erroneous statement by itself but what's what what are this what is the speech used and words been used generically that's been fought out in another court room but it is certainly not something that can be removed from the date by an order of in court in the united states as far as they're encouraging others to use a word in  pass if there are no further questions you know for the questions thank you counsel the case just argued will be submitted for decision in the