successor just dollar productions as address the actual question that question is clearly a marriage question and should never have been plucked out of google's rule twelve motion for early just as a country that's correct understand why you might have given him i can't manage the pain your honor that's exactly the the issue on appeal it seems that the district court has confused article three standing can we be in this court with this concept of contractual standing which over time and in fact as recently as last december last november in the nd circuit's platinum onto our case which google sent as an additional  court has adopted this this clear view that contractual standing is a merit to question instead we were unfairly prejudiced by having this issue plucked out subject early discovery subject to an early decision  everything would prevent your honor respectfully because we would be completely deprived of the process under which we're supposed to proceed your honor that would put straight into the palin versus new york times case so the rubric is this it should have been a twelve b six issue and if it's a twelve b six issue this court just said last year you cannot hold an evidentiary hearing on a twelve b six matter and rule on it in fact the pail in court said although there is wide discretion for a district judge to control the pace of the case it would single allegation of the assignment of a contract is enough to make it plausible plausibility here is met in spades on the contrary we have a breach of contract case we're not asserting a trademark infringement case this is a case  breach of contract we've led the elements under new york law we've led our standing under new york law and the courts absolutely sustain the complaint that in fact even if the court doesn't do that let's say the court only vacates we are asking as an  required us to prove it by a preponderance of the evidence not even your honor by a pretrial standard such as a motion for summary judgment the sick guy a case from the eastern district of new york is really exactly like this case and there are the court held that if you're going to argue assignments in gross as they did or some disuse of them are or some interruption in the years that question is tuned aligned with the merits of that case is really the most instructive case that decision can be made at the pleading stage at this stage we're talking about whether we've adequately pleaded the complaint and whether it's plausible and the case is about no bardas says that from the circuit lindsey says that from the th circuit cotton versus certain underwriters from the th circuit all of those cases on erroneous rulings that will just end up back in this court again if the court below now decides on a rule twenty six dollars motion that there were three critical errors made on the use of commerce analysis one is the opinion only focused on whether business plan mark in fact there are three cases on this mary hall a case where the mark holder was in bankruptcy and one hundred and sixty five southern district has been cited with approval a one year says ation of the mark of three years as a sion the mark in dial a mattress which is the eastern district in the or case and insert toga vichy a nd circuit case a seven years as a sion of the mark the duration of the sensation is not what's relevant it's whether the goodwill is attached and in our case w the longest one we have an example of is saratoga vichy i'm not that the interruption here this is a sion of yours was only for a one year period from twenty four dollars to two thousand and fifteen so we don't need to go there the fact is when we put our new content up the record shows that we had hundreds of thousands of hits of unique users who came back to the google's web site so there still was goodwill in the mark and we contend that the instructions of the court if we're going to go back down to focus on the existing website us they were not a party to that contract they are they were they are attempting to enforce a contract that was entered into two thousand and eight appellant as some kids informed two weeks before filing this lawsuit and it received alleged right in this to enforce its contract only as a result of trademark assignment leading from the original predecessor and back in two thousand and eight to three subsequent assignments so as far as whether or not dave whether or not there's jurisdiction the lower court was attempting to identify whether or not the plaintiffs have suffered an actual injury in fact for the plaintiff to suffer an injury in fact they had to be the rightful owner of the google really can only be enforced by the trademark owner this is a as some kids claims rights dating back ten years through three separate assignments each period of assignment there was no use as coun discovery proceeded and then twelve the one was fully briefed by the parties that that's how we got to this position what appellant is asking today or rather court has found that to be a marriage consideration standing right what you're saying is that there is an exception for trademark i'm saying that there i am i am saying that there should be an exception for the trademark  we argued that in the alternative if if this court were to look at the facts before them or look at the plain language of the of the agreement the court could find that there's really only one allegation i believe it's paragraph seven in which the  plaintiffs makes the legal conclusion a statement that i am the owner of the trademark and you know all right and therefore it says that they can enforce the contract with it the trade michael this is agreement between the parties and it is from that that the rest of the allegations flow there is no explanation with respect to how they got into that position or no credible explanation anyway as well as there is no statement demonstrated that with continuous use over time of the mark in a in a commercial manner such that he would be able to maintain rights again back to that point with any sort of assignment when you have a string this time it's the same it's only effective if you develop good will in the market true mark cannot be separated from the goodwill so if i have a period of time in which i have a business that is actually not offering any services not selling any good there is no goodwill it then what has happened here  at a number of factors they look at whether or not there was sales revenues whether or not there was any actual rendering of services it isn't enough just to happen on to use a mark on a web page you have to be rendering the service they claim to be assignment so there was no goodwill that had been generated underneath the mark in between each one of these periods of time and these resulted in some missing grows into something gross and therefore invalid there is not a clean the lower court did for the entire ten year period perhaps a bit to the  court it's a great chart but i'm just now looking at the complaint so is there anything that contradicts that statement it was only a little more fact i don't know that there the complaint with all those one with the other that's correct there actually is no allegation in the complaint of continuous use of the mark that was that is that usually fatal to a complaint of a trademark that's correct yet there are a number of things that we identified in our going to ship where you you need to have an allegation of continuous use you need to have allegations that show the value chain a title and at least on a lower court level some of those cases the complaint that they don't have that stack oh no your honor i mean they they obviously made a calculated decision to bring a breach of contract claim instead of a trademark infringement it would actually be a it allegation or an or an in addition to claim the question of whether or not where the practice in the that's exactly what all of these cases we've already talked about say is a marriage question so there are two things we're being subject to here one is are being subject to of essentially a summary judgment argument on the facts google wants you to because although it's a contract claim there's a trademark element to it i think you read and it's to one of my questions but there is a maybe you could call it an element may be called something else but that's about the trademark that's what gives single case on a twelve b one motion that gets rid of a trademark for article three standing so it doesn't matter either way we have to go and i'm at the stage yes playing with the argument is that you require an that's enough that that a single allegation of assignment for a contract claim is enough to get past the pleading stage that's where we are the pleading stage of the contract