court i think the most fruitful use of oral argument is the is to address the issues concerning the district court's extensive weighing of evidence and the of evidence here internet oriented social media evidence celebrity endorsements actual confusion and the district court found a way the polaroids factors a notwithstanding the troubling and sometimes vague distinction between trade dress and product configuration it questions about how exactly to apply that rule are constantly bubbling up through the courts and there have been a number of contrary decisions but it is well understood that certain kinds of devices do qualify as as labels when they're used across an entire it's an entire product line that is signal number one that we're not talking about product configuration the fact that a device is of not not presidential federal circuit decision which was actually decide under ninth circuit law which made a distinction between whether the device in question is a three dimensional or two dimensional we found it very difficult to understand how the court found this to even be a three dimensional device or three dimensional design but even to the extent that it is there is no hard and fast rule of the court clearly relied on that rule here so we think that was that was just simply a legal error that this court with all due respect we believe would be well well well advised to address because this is the circuit in which trade dress and proxy figuration cases seem to come up the most and a case involving fashion design such as this one involving a major fat fashion out with such as this one does where the district court relies on a and then really an entirely appropriate distinction between two and three dimensional designs is very problematic having said that  court was able to look at half a dozen detailed affidavits involving actual confusion and merely write them off by saying they were not prohibitive or on the grounds that they were from people with free established relationships with the plaintiff or are you suggesting that somebody would pay a thousand dollars for sneakers wouldn't satisfy himself or herself as to who manufactured we're quite sure that would but they would this is a reverse confusion case so our concern is not that people are going to buy louis talk thinking that they're buying level thirteen but rather that what has happened here is that level thirteen was prevented from the opportunity to the velvets brand by being overwhelmed by the way we thought this infringement louve weeks on took the design that even used by level thirteen came out with sneakers that utilized the same design and level thirteen which i know i know level thirty and i know in tony brown i contacted and so many i contacted antonius people and i said what's going on here that isn't proof that is  certainly if that's not proof that certainly raises a fact question and we look i mean there are many products by different manufacturers that look similar and sometimes the purpose that it serves assure similarity in appearance but shouldn't we look to the confusion of customers yes and how could a customer who's spending a thousand dollars on a pair of sneakers not figure out who manufactured it i mean who could who would who would do that well it to the extent of the i mean i don't believe the district court concluded that because of the because of the high level of expense of the products that confusion wasn't possible we certainly are when i grant you that i'm just sort of asking one question where you were including something inherently implausible that was made by ford court well in fact your honor we we haven't trademark infringement we routinely see that products that are extremely expensive including many products that are manufactured by police here are nonetheless found to have been in french not standing the fact that some degree of evaluation by the customer would lead to the conclusion that it's not the it's not the genuine article the question is under  polaroid that is a factor of the degree of consumers of consumer sophistication that is a factor here again it's a reverse confusion case and the damage is not it's not a passing off situation other words are people went into a store thinking they were buying them a thirteen sneakers instead they bought those those junky old we've talked sneakers that's not the case we're saying here retailers said to my client we can't carry your line anymore people think it's  whether it is louis we talk all i know is this is a problem for us this is something we don't want to get involved and clearly there's going to be some kind of lawsuit there or there is a lawsuit we don't want to be involved that's the damage it's a different kind of damage from passing off it's not a passing off case two requirements that level thirteen needed to meet in order to be able to bring a trademark claim in this case the first and foremost is that they had to have evidence that they had actual intellectual property that they were entitled to enforce and without that showing without evidence to show that they had no trademark upon which they could file a lawsuit in the first place the second requirement is the one that your honor a judge judge jacobs is mentioned several times whether there was a likelihood of confusion here and that's determined under the eight polaroid factors that judge friendly has set out for doing that and in this instance level thirteen lacks the evidence for both requirements the failure of either one of them as is   judge and omar went through meticulously what the evidence was what was actually in the record and what had level thirteen brought to bear in order to be able to sustain a claim that he just relied on those two or three dimensional analysis no your honor it's interesting if you go through the judge general myers decision that's not what he relied upon this is something that he mentioned as many courts of mention including the supreme court in wal mart for some are brothers hit the point he was making is this there are two different types of trademarks now one is to traditional trademark which is to say a symbol or a word and a second type of trade mar is what is tends to be called trade dress he mentions that the first type is ordinarily something that's two dimensional and that the second type is something that's ordinarily three dimensional but he did not use that as the determining factor of what this was instead he went looked at the evidence which is exactly what it is that you would want him to do what he what was the evidence that he had the evidence that he had what was the whole series of things in the record and nothing to contradict it as to what this was what was it it was trade dress the kind of trade dress we call product design traitress and he went through all the evidence not relying upon this two dimensional three dimensional analysis there factors as to whether there could be a likelihood of confusion as has been decided i think in the case in which you participated the playtex case and there it was actually the court sat where you have the literal elements the name of the company it that that bear is evidence against any kind of possibility of likelihood of confusion and that's on the second part of the analysis the likelihood of confusion circumstance if i may go back to judge johnny's question the question is what did the judge look at this is what he looked at the p t o understood this is product design trade dress it said that repeatedly second the reason why they understood that ways that's what the applications of the p t o said that it was product design traitorous level thirteen in filing it's complaint call the product design trade dress level thirteen in its response to the conner claims that it was product design tra level thirteen thirty b six witness when asked to testify about what the says acknowledged that it was a kind of product design trade dress and if you actually look at the the item itself it becomes very clear that this is a product design now what is it that they were arguing instead they said oh it's product packaging it's clearly not product packaging you are judging you mentioned in another case the landscape forms decisions by jokes but you're on the panel that there's a difference between product packaging which is the material that the product comes in and the product itself part me that's richard and this one sure enough came in a box and their business plan actually identified the box a special box that was being created by the way not with the top plate design on it a special box that was being created in order to sell the so what did you have here on the evidence all of the evidence showed that this was product design traitorous none of the evidence showed that it was product packaging something to which you could apply an inherent distinctive so under some arab brothers the walmart versus america other scase they needed to prove secondary meaning and they did not have evidence of secondary meaning one of the reasons they tried so hard to care re characterize it i will say because this came up very late in the case one of the reasons they tried to reach characterize what it is that they were doing was they could not prove secondary meaning first and foremost this product is on the market for a very short period of time and you will find no case in the federal reporters that in a period of time this short with so little put into the advertising of the case very of the product you will not find any case in which secondary meaning is found secondary meaning is usually found after ten years thirteen years case twenty years that's how secondary meaning develops because what you're trying to show is that people all across the country who are potential consumers understand this as a designation of source issue and not just  population of people running out to buy thousand dollars sneakers well it would talking about a very narrow strand of very well heeled athletes well that may be true your honor but it has to be that it has to be nationwide they have to have some showing that nationwide this this product is appeal not for its design but rather because of its identification of level thirteen as the source that's what they have to show and they had no evidence of that one of the things they in their briefs that they they say is judging them are to hide bones not aware of current trends is the social media campaign that was done in fact the social media campaign was nonexistent there was never put in evidence a single tweet a single social media posting of any kind that ever pointed to the  wasn't an unusual product design least for hughes did i misunderstand no you're correct your honor although that is primarily on the strength of the mark analysis under the polaroid factors but yes there was there was no there was a very high obstacle that they need to overcome and that high obstacle was that their toe plate somehow was understood by their designated demographic to change try to change that periodic lead but there does he did a demographic as indicating level thirteen not that they found it appealing but rather that that template meant level thirteen and they didn't have an inhabitant of that they had zero evidence and one of the reasons is  or used by large numbers of people and there was plenty of evidence in the record judge accepted the evidence showing that it had been used on lots of other products including products very similar to this one so they had a very high burden to show and the problem was they had no evidence of that they had no evidence of secondary meaning with respect to the likelihood of confusion for actors your honor i agree with you i think the sophistication of the consumers is very important but said otherwise there were five factors that were found in our favor the strength of the market the similarity confusing similarity the question of of actual confusion the question of of good balanced the factors found five opposing one very weakly favoring and on that basis said there's not enough here for the case to go to the jury so both on the existence of a trademark and on the on the likelihood of confusion this case fails it fails on either it fails completely and it failed on both in this instance so we ask that you affirm the decision of judging them are in the court thank you very much for years you're  the judge did look at the evidence he looked at it he he weighed it as if it were a bench trial he he took again mr shapiro insists there was no evidence the best evidence it is a million cases the best evidence of a likely  confusion is actual confusion the district judge simply wrote off the actual confusion he weighed the evidence and found it insufficient for reasons that would typically be left for a fact finder  mr shapiro said that there were there's no evidence of any social media campaign the court acknowledged that there were fifty thousand followers of mr brown's instagram instagram account and the only reason they would be following it was because the only reason anyone would ever have heard of him would be because of the product that he was promoting whether or not there was some other reason there was never any other reason on the record and that's a fact question that's not a question it's not a summary judgment  means that you you're making some kind of splash again these are questions that could be brought out in the course of a trial but as a matter of summary judgment to say that they don't raise a fact question on summary judgment corners the court did not make the appropriate use of a side by side description here of the of the claimed marks and we think that there are there is ample basis to to reverse the decision here remand