or at least we're not aware of a competing product that's not in the record and then nd the iraq war harm argument that lego put forward was based on this idea that there was a potential quality issues with certain zero products with respect to the tape nor the bricks that line that or the three bricks that are subject to the injunction as well so i think in both the maker tape and the bricks that there was no discussion sales from those brick sets and we're talking about the brick sets we're talking about only three rings of several dozen different type that come in boxes of two thousand seven hundred dollars bricks so for the idea that there could be some harm y the bond was supposed to cover the potential but but that doesn't limit it's limits and it actually if that's the only thing that we would be guaranteed for respect to the copyright and trademark issue of analysis on the figures of course the any property infringement analysis needs to start with the identification of the protected legal right and here in this case the district improperly relied on  figures the broader point is the district court failed to limit the comparison to the proper protective scope of the copyright essentially the district court decision finds that relies on a finding that zero has effectively monopoly rights over a one and a half inch small humanoid figure and that's not the law that the humanoid toy figure is an idea and ideas of course  not protected by copyright they're explicitly excluded from copyright protection under the statute and the nd circuit previously addressed the very limited scope of copyright protection that's available to human like figures in accurately stating that these figures are copyrighted and protected by the copyrights they're not the ones that were the deposits for the copyrighted works and so this is where this is one example where we you know they should do it you said the court should we said the court should should conduct a visual comparison of the works of the workhouse yeah that's right but i guess i'm looking at improperly relied on body it's well i  the fundamental point is that the embodiment that they relied on included design features that do not exist in the copyrighted figures including the yellow head and the two dots and and small line for the face and so that's one aspect of how the court relied on subject matter that was not his comparison looked at the head of legal figures that were the same color as it were the years and had more similar faces but those faces and that color are not part of the copyright the copyrighted work and the broader point again is that the cause the district court failed to actually limit its analysis to what's the proper scope of the copyright because once again article you know if you show that you know harmful well no i think we have only are harmful you're arguing that he should have focused more carefully on the details well not just the details but the actual protected elements of the work because what the what the district court was it and it says it did a total concept and feel analysis what the problem with the total concept and feeling else is here is the total concept and feel of these figures is a small two inch one and a half inch to ensure she went away  with very same human form very same human pose so same size form and pose and held that it that the only copyrightable part of the only part subject to the protection of the copyright was the muscular design of the muscularity in those figures because the rest of it is just an idea a human body form a general human body form of a small of a small size and so size st the soft size is not something that's part of that's protected by copyright and then of course the general human form isn't protected by copyright and then the functional aspects are in protection but protected by copyright and the district court didn't go through and delineate those instead again it referred to its total concept and feel and when you come back to what's actually just protected by the copyright there's very little similarity that the use of the difference is far outweigh the support an injunction that said do anything to the effect of the injunction because it's also based upon the copyright infringement i mean it enjoying a product based on both but i mean if you still have the one i mean and it's easier to just record funding the other the it's in our view we can it's a legal issue here because the court did not delineate what was protected by copyright and what wasn't in the just was a total concept and feel analysis of the entire figure of infringement it was selling zoomer it was selling that product using infringing images on the product and so the irreparable harm that that caused that products be removed was because of the figurines that it was displaying on the report on that right in addition to the legs falling off problem there was clutch power problem so richard so clutch power clutch power is what that the witness is explained in the lego system as how the the knowledge circular just sticks together could potentially see is them associated with a product with you and therefore having quality products but i don't see any evidence of that he probably was inferior there is no evidence in the record specifically that the tape product is  court said in his ruling that allowing these bricks to be sold turns into a compulsory license if we allow it and david bach spahn testified below that the lego group does not and has never license and the other support for the injunction was there still are and wants true with respect to the bricks the other is is again it was the clutch power exhibit one in evidence the the witnesses had and talked about the lack of clutch power so that it was an inferior product with their barket share shape what is protected is the sculpture itself and the evidence in this case is that st the court did look at the deposit materials which are the pictures but also the court had exemplars and david  testified at appendix page five o five that the exemplars were representative samples of what was in the deposit materials and in fact zeros briefs called the representative samples of what was in the deposit materials and it is that shape and that form that is protected it is not a two d image it's a three d image and so of course the court in deciding a three d sculpture should should look at both of them and in fact courts regularly do that visual comparisons are of an amount of a bond at all it in appeal it refers only to a declaration below that the court questioned the witness about during the plumbing or injunction hearing and the court found that testimony to to not be credible that on the overwhelming evidence of the likelihood of success on the merits and specifically on many different types of intellectual property so this court found so much wrong and courts in the nd circuit do but have no bonds when there's so the standard is not what they could get in damages if they were you know i mean it's entirety like if they where you know they can show that they would have been a one million dollars it's a sliding scale not in the breach but there's two nd circuit did two cases within the nd circuit i should say one is lighting and supplies versus sunlight which is in eastern district of new york case the other is new york city triathlon l l c versus new york city triathlon on club obviously a trademark case also in the southern district of new york in two thousand and ten i think both of those cases found that it's such an overwhelming likelihood of success that no bond is that it is the same to sit so that the box to be specific was both patent infringement because the bricks were in there they also used the infringing images on their product and so d certainly that the evidence the overwhelming evidence of likelihood of success on the merits  trademark and in copyright the irreparable harm can because there because the same low quality of play could could certainly be infused into the the images that are on the box and for that matter under the tape it could be it could be the same  issue your honor i will address one what we called the heart of the case before the comparison of the idea as opposing counsel points out and the expression of the idea in this case they are saying that there's only one idea and it's a small figurine of small humanoid figurine there are actually two before this court both made by lego that demonstrate the difference between the overall look and feel of the figurines on page five of our brief that were talked we've been talking about the many figure figuring there's an image that appears there and on page eight of our brief the read brief the many friends figurine appears there both of those are different expressions of th idea opposing counsel refers to their very different they're protected by different copyrights and they have a different overall look and feel zero didn't go out and create its own humanoid figurine that small but can work with these products copied the many figure figurine and so for them to argue here that somehow it's only an idea and they're allowed to do what they've done i think that the comparison of the friends and the many figure figuring that the size of the figure is not protected and then so what we're left with are the design features that figure which are the trappings the little shape the bulge with the legs the little head and the small two do sixty one where the review about the body coming apart the person says oh also my my boys love them all of the reviews were positive there was no if there was not one reviewer that was negative and said that they did not like the product