good morning everyone you have three arg cases on the calendar this morning and one motion to be argued we also have two cases on submission cases on submission or are barossa the bar and inspector because cells and we will take those cases on submission i've been advised by the clerk of the clerk that's counsel are present in all cases so i'm going to dispense with reading the calendar to save a little time this morning and we'll start with the with the motion distributing any products with the accused muffler well name on here j b well it is only seeking a partial stay of the mandatory injunctive relief pending appeal that requires the recall or relabeling of its products that are already in the market isn't isn't it about considerably irreparably harmed absent a stay pending appeal and importantly that evidence of harm to j b weld is largely undisputed on the record instead i t w asked this court to ignore that harm to j v well as being self inflicted however this court's case law and dealing with stay motions compels requiring the harm at this interim stage to each party and balancing and weighing that determining whether issues stay not ignoring davy wells and there is a finding of irreparable harm to your adversary labeling your product this way for everything new so the the issue of the violation doesn't seem to really be in dispute your honor we will in the nairs disputed the trademark infringement claim but in terms of this the state requests we would submit that the briefs say for appeal despite the irreparable harm finding one we would support we're going to argue on mares that it's not supported by the evidence irreparable harm i t w because there's no evidence in the record evidence in the record that i would be irreparably harmed reputation would be out of its control due to j v votes conduct that's a an argument that would apply in every trademark case and there's no evidence that that transpired here one of the concerns is the degree to which the mark is iden here i mean in many trademark cases we we don't have it quite so stark that's correct your honor and to the extent that the showing or the degree of showing to infringement this case may have some sliding scale to to reduce the amount of a reparable harm that may need to be shown i would submit here doesn't excuse i may not have been clear i was suggesting that it makes it almost impossible for you to argue that there wouldn't be consumer confusion when the when the mark you're using it's almost is identical to the mark that they've trademarked we're on or i would submit that in the context of the marketplace when you're not looking at just those marks in isolation and this is what we submitted to the district court more argue on the merits the products are very different appearances j b well it has its name on it its brand is long recognized color scheme so that a consumer in the market seeing these very differently packaged products are not going to think j v was a product comes from i t w it has  expedited it's going to be fully briefed by the beginning of march and so this idea of generic side are substantial harm to the view over the course of of weeks at the most two months while this appeal is is decided there's no hard evidence of any harm during that period of a brief stay which we're here today to decide that would that would befall i t w whereas going forward this relabeling provision would substantially and irreparably harmed j v well its customer relationships his reputation in the market because it would have this stigma relabeling which is say put this stuff in a in the back and then maybe in two months you win on the merits and they can all just come out you don't even have to relabel yes right that's certainly a possibility and that the testimony from our client which is really the only testimony in the record on that point is that that would be very detrimental to their relationship with autozone and it would be a bell that you can't on rain once they had that stigma with autozone it would affect their current products that are solidified in the store their ability to place new products that they're attempting to place in auto zone so it's a bell that can't be on wrong when you when you raise this issue in this isn't it i mean don't they already know about it presumably others on knows that you're involved in this litigation and there's been a finding of trademark violation so it seems like in terms of the rebel being rung  rung the only question is whether there is now someone who has to go around putting stickers on things your i don't know there's no evidence in the record that his own is aware and so we would submit that the harm to the briefs day the harm would be goodwill to mission control over the reputation of our product and if a customer doesn't like it they may never ask for a muffler weld again judge meyer found that we are in a stablished product over forty years of use of our federally registered sell hundreds of thousands of dollars of product over the course of a year it eight dollars to ten dollars per item and that harm is continuing every day that this happens now as my colleague here says they've already have acquiesced in the preliminary injunction in terms of willing to relabel and they off course in an auto zone will have to learn of that and in the record and i don't have a cite we don't have an appendix numbers but there comes a contract simply hold the product if they are confident in victory could resolve that same product later on there's no requirement to destroy their product and this is of course in a situation where judge meyer found bad faith in french french but the product on the shelf was all their stay motion disputes the analysis under the polaroid factors that therefore in the end of the day it seems quite certain that we will prevail that there will be a lanham act violation there will be trademark infringement they do not argue otherwise therefore your honour's given that this is the same name that there is continuing harm to our good will our reputation  and that the differences they talk about the packaging differences judge meyer found those were not relevant in the circumstances of this case in the way this product is sold in the way people may ask for the product therefore we ask that the plenary injunction immediately be allowed to  or more likely relabel it that that's basically it and that there is no no really significant challenge for them to appeal no no significant ability for them to appeal the preliminary injunction well i think that they would still have an appeal that and the fact that they even agreed to go ahead and relabel their product muffler see all which is a perfectly appropriate name and already shipping that product acknowledgement that they will still be able to proceed if they can prevail and i don't think under these circumstances that they've even shown much faith in their ability to prevail they could bring back the name just that they get what would they have to do that take the labels off that well they could just choose to sell the product that has the muffler seal and then just tell auto zone we've you know we're going back to my farewell to that's their choice or and i think that there's no evidence that that is any significant harm judge meyer certainly did not think so good you have to post a case i've read the costs of their doing whatever recall or