show it had trade dress and secondary meaning by aardvarks st infringement in quote unquote two thousand and eight however there are multiple reasons why we object to that finding the st is that it's undisputed have one we did not have a survey which was one of the factors so we only went for five of the factors but the nd circuit has expressly indicated that you don't have to prove that every element and that no single factor is determined as the court on the other hand felt that this is the but we took the position that respect believe that advertising has a purpose for secondary meaning and it's to show the impact of the company activities on brand awareness and that's not necessarily being measured in dollars and cents alone but there are many especially heavily factual matter it's something that requires a large number of as we said six factors have to be determined advertising impact brand awareness it's it's what would be perceived by the public and the court used a survey and he said quote they're expensive and even though courts claim they want them they seem like they knock them down searches they've been nothing out as much as they accept them and you know according to in dollars to have your service knocked out is not a wa dress owner does not has secondary meaning so no no relevant market recognition that something that looks like this belongs to this particular source and acquires secondary meaning later at that point the insurgent is infringing even if it wouldn't be infringing it when when it came in at that's not a very intuitive legal result and i wonder where it comes from thank you ron as far as i can tell based upon our beliefs on the other side's brief i don't believe that it's any case philip directly on point i think it may be a matter of st impression because neither side could find a case that addressed this particular question but i think in terms of the rationale i can explain what our rationale our reasoning is first our reasoning is based on the few brands in which the supreme court indicated that marketplace infringement did not and the problem with this from the perspective of you know from the litigation perspective is let's assume that there are multiple parties for example if you're using your rebuttal time which you're free to do but i just wanted to know where hear me ok yes thank you just to pick up on the question that judge toronto was asking there's absolutely no authority for this multiple infringement proposition it's completely contrived dark was in the marketplace it was continuously in the marketplace there was no suggestion that they stop and started there's no i don't understand this multiple infringement it could apply to every single case that that is before you i mean there's nothing special about this case that would distinguish it to justify the concept of multiple infringements every single case you see about trade dress or trademark infringement the  cohen mr mr weiss and i think mr cohen began his point about that particular issue by saying that in your summary judgment motion you never asserted that secondary meaning had to be a stablished at the time of aardvarks entry whether that was late two thousand and eight or march two thousand and nine is is that right in your summary judgment motion you didn't identify a timing requirement as as as as existing and as a requirement as to which the other side lacked evidence thank you y on to say that you don't have to have a trademark before you actually sue somebody for trademark infringement is just it's it's a little bit farfetched i mean to say i don't have to have a patent before i sue someone nothing new about that date that would come into effect and change the ruling in this case has bob carr identified suppose suppose it w evidence that would suggest the possibility of a different result and relevant to that did have an opportunity to do that or are we talking about something that he that it could have  shown to be a prejudicial prejudicial in terms of the timing but has not done so well i would say if anything aardvark probably built up a secondary meaning before  did i mean you know bob carr continue with its vehicle program sure but there's nothing in the record that would lead me to think that that it that i've seen secondary meaning fact these products these are vehicles that go to big customers like the mobile in a like these one hundred thousand dollars vehicle programs that they do they do this for a whole month sometimes several months sometimes a year so  the customers are sophisticated and they know who these where these products are coming from and they often do side by side comparisons which was in the records so it's clear that  the two programs were different the vehicles offered by bob on those by aardvark just one of the thing i would like to point out is that the car is never pointed to any nexus no connection between any of the six factors and their trade dress they don't even put the trade just definition into their brief i mean there's nothing to understand why any of these six factors would are relevant to this particular vehicle war the trade dress in particular i mean they had counseling those guys more if you don't mind i'd like to ask you to address the standing question with regard to the patent infringement claim and my question in particular to you is what is the district court right in determining no statutory standing in this case based on the non fully understand your question but i'll say this so the issue here is very clear cut either you have standing on the day that you sue or you don't and you cannot commit correct that retroactive an assignment and that's the standing at the time the complaint was filed they can cure that defect by adding the patentee and that right well that's not the issue here of course but i believe that is probably correct  but but i think that has to do with and actually the situation here was that the judge did try to let bob carr correct this but they gave the bob carr an opportunity to join the inventors to th that right so they could conceivably bring the claim again tomorrow just with the inventor's added into the complaint and then it would make a standing requirement is that right correct assuming if you're assuming that the assignment documents are good well actually if none pro tunc agreement is good even if it's not effective retroactively it could be effective now so could they conceivably  now rebring the patent infringement claim all by themselves without even adding in the names of the individual inventors because you're absolutely right that encodes assignments can't work retroactively but you know this is now prospectively because there's been this non protons agreement that's been entered so could they they now have a written assignment could they bring this to the by themselves tomorrow with and meet the standing requirement i mean that wasn't the situation for us but yeah i mean i once they have an assignment they can prospectively bring an action ok thank you i don't i was waiting for you to ask the next question which is you know what's what so what's the difference and the difference here is you know if you don't have standing on day one it becomes a he said she said i mean people come out of the woodwork they said oh i own this you own this who knows inventors die or they go missing people get divorced i had a situation where well in fact in this witness was not well prepared and he certainly was not aware of any any written this written document and i think your perception was correct that he was kind of wobbling on what what it meant  really so like i said i mean until until a written assignment is actually done i mean i think that you have the requirement for written assignment and the burden on bob carr was minimal there is a one or two page document one template so so so this law is not much of a burden i mean it takes very little time to do an assignment it's a form document and most attorneys do that you have to also submitted a declaration in the case so most attorneys will send a declaration an assignment at the same time and you just haven't signed and you just record with the patent office and you're done and that's it i think the burden on on people who fall assignment is relatively low and the benefit is very very great it gives a clear title and avoids you know multiple people from coming after you and i'm going to switch over five may to the to the issue with the new york unfair competition dress is not protected ball because there was no secondary meaning the court said that the state law unfair competition claims were also dismissed as well and so bob cornish reply brief said that the court applied the wrong law because secondary meaning isn't isn't needed but that's completely wrong it cites to this case the i t c decision which was the new york court of appeals and if if you look at the appellate history for that so so the court of appeals case did recite a test and you'll notice that the test has a lot of the same things as required for secondary meaning and if you look at the history that the question before the court of appeals was certified by the nd circuit when it came back to the nd circuit they actually said we discern and i quote here we discern no material difference between the standard established by these factors and here they mean the six secondary meaning factors and those enumerated by the new york court of appeal so so it's clear that secondary meaning is required bob carr and it's a reply brief to the when it's brief to the district court if fail to argue anything other than secondary meaning and in fact its entire position consisted of five lines of argument and that's at appendix two thousand six hundred so bob carr never raised this in the lower court either as to daubert there was one argues about an abuse of discretion their argument was that testimony by the expert would have been overdue so i think at the outset its motion fails just on that reason alone opportunity to show different evidence on this at the lower court and this is the claim mr weston claims that you know it's basic you have to have a trademark but this is a question of different choose marks and we  introduced in two thousand and fifteen for two mobiles two different standards and we just submit the best not logical it doesn't it doesn't make sense it would not be a good law with respect to the standing issue if i may turn to that the the extent that this court educated several decisions afterwards which we weren't aware of because they came out afterwards such as the lone star case and such as the credible case our position is a little bit different now than the position that it was then because of the really addressed by civil judgment which is also the standard and most are based upon the fact that there's an injury and the possibility of multiple inconsistent suits we believe would be inappropriate to create a burden that somebody else would have to be part of the suit