million dollars and the other is with respect to the district court's denial of exceptional status for purposes of planes of the motion i'll take them in order but i'll turn first to the taking of the two million dollars the narrowest place to start i think in which this court can and should reverse is that with respect to the three trademarks that issued after april of two thousand and fifteen those are district court took on the rule fifty nine motion and then i think it's very very clear under this court's opinion of carol the d c circuit has that we said it has the same standard that the button of manifest injustice cannot be used to undo something that could reasonably have been raised before and so this argument assumes just completely for the sake of argument that well tell me this you know how is it possible that two counsel on one judge went down the wrong path  registered and trademark law has long been clear that the for purposes of trade mark writes the application beat is what controls and so the mark just has to be registered you can't go to trial on an unregistered mark but the mark was registered when i went to trial the statute doesn't say that it must occur before but even if it does here now evidence in terms of the two the alleged infringement takes place in april is that correct  yes and no yes the evidence showed the sting operation in april twenty fifteen but the evidence the jury heard that stands beneath this verdict was that the friend was a known counterfeit or they were there was a container being unloaded that day that the sting operation happened they boasted that they sell watts of product that is check this only not answering the question the question is when is the evidence of infringement is it during april of two thousand and fifteen yes absolutely it's joining a pool of twenty fifteen ok there's a new markets registered before that correct correct and if registration has to be in effect at the time in order to recover for counterfeiting as opposed to regular section forty three and trademark infringement then we would be looking just at the two marks correct no because april twenty fifteen isn't the only evidence that the district what is the other evidence that there was infringement beyond that period of time who was unloading a container on the day of the sting operation on and this is pages sixty two and seventy one of the testimony the defendant said they bought in bulk and they sold large quantities of this product that's what they told the investigator the jury they told the opposite story they chose to say no we've never heard of cloud but for first time we ever got it was that day we just found out from some is happening evidence of any days before this sting  operation is the first state of evidence of an actual sale but there is evidence on page thirty five and thirty six that they were a known counterfeiter of these products that obviously predates people twenty fifteen because that was known and was the basis for and september of two thousand and fifty that's a requirement absolutely are because the evidence that the jury heard was that this was an ongoing operation they didn't ask for the jury to give us a a date specified to it they chose to say we never the jury to have concluded that they want still doing i still don't i'm looking for evidence not argument i mean i understand what was argued but i'm looking for evidence so point to that ok will the evidence i'm pointing to your honor is that they said they sold in large quantities and trial another piece of evidence is that they said the opposite they've never heard of cloud that's page eighty on it that's not evidence of anything you have of any affirmative sale or counterfeiting nope that shows they were lying and so that's why we cited the doctrine false in one false in everything because that in graphics onto their testimony that they claim to the jury they never sold after april twenty fifteen this just happened but having been caught lying on the other stuff the falseness into no doctrine applies the jury was entitled to hear their testimony that oh yeah we only saw on april twenty fifteen and disbelieve it the other way to believe any records any other witness you have one lies on that their credibility is at question the jury disbelieve the contention that it was a one time event that means it's it's an event that continued going and trejo if you're if you're wrong on your interpretation of registration because there is there has to be a difference between counterfeiting and infringement and that statute is made that distinction if you're wrong on a registration then aren't we really looking at the registrations that were in march two thousand and fifteen no because the district court took away the three that came after on the basis of rule fifty nine manifest injustice standard and that as a matter of law cann exist on this record this court has said rule fifty nine cannot be used when an argument could have been raised before that's as a matter of law this argument could have been raised at will twelve rule fifty six  could have raised earlier they could have raised that they could have made that a defense in their in their answer to the complaint if the answer to the complaint in our initial disclosures we said this is counterfeiting we want to two million dollars they could have said something then they did move for summary judgment and they made legal challenges to all the claims they didn't make this one we moved for summary judgment on liability they didn't oppose on that basis i did you can't stop me and i'm trying to understand how we got here double little in the statute that seem to be the statute that the judge was referring to correct which is one one six b little two thirty i mean title thirty six applies i think that's the wrong provision the provision is a provision understand that but that was of course one of the reasons the judge granted the motion because that the statute the judge was relying on and in where the judge to say on the papers in chambers  apply because of interstate commerce and they had other arguments they never made the argument in the direct in the motion in the directed verdict motion at summary judgment when it's the same argument i mean their argument is on the face of these trademark registration they issued after april fifteen women for summary judgment saying here are the five trademarks the infringement occurred in april of fifteen i mean it's an argument that it absolutely could and should have been raised and and by the way your honor the district court of page eight of the record said this should and could have been raised earlier and that's what the district court concluded so when the district court made that finding it necessarily undercut the basis for rule fifty nine relief on as to those as to those two trademarks three trademark false designation of origin trademark state unfair competition and state statutory the seven thousand two hundred claim of liability where they know there's not liable well that depends on how you interpret the statute and terms of the registered mar because you might have had summary judgment with respect to infringement which is different than liability for counterfeiting do you agree with that but let me just yes when i agree with  that's not we don't care about all those because we're only talking about counterfeiting here for the damages yes absolutely forever laminates for liability to because you know you're out whether you have a counterfeiting claim and what kind of damages you can get you can get statutory damages of course you can only get statutory damages for counterfeiting but liability was asked to all claims the trial was then just on damages for counterfeiting i understand but and have the judge is saying he misunderstood the air and how they came to be you know what the pattern is so in counterfeiting you have two questions one do you need to have a registered mark at the time of the counterfeiting and then to what on what type of goods must the counterfeiting take place so seem to me to be two legal issues i think that's right you want to yes ok and your view is that counterfeiting doesn't need to have a registered mark at the time of counterfeiting is that right correct my our argument is that the registrations here we did have to but we haven't got to those on the three that were register kaffir april fifteen those are appropriate because the statute doesn't have that temporal modifier and even if the statute is to be interpreted to have that requirement the evidence here showed an ongoing pattern of sales so we're past april fifteenth anyway that's the argument your honor and do we have evidence as to actual sales that are after these approximately what june and september registrations on the truckle contain are not beyond anything i've said already on a taken in the directed verdict motion as to eight hundred thousand of the two million and it's the position that those registered marks did issued before april fifteen on the related who got water which sits beneath the hoop on heat management by session i have and that is that those are registered in a different category of course they're registered under food products additive dire with the water whatever it's called or as the registrations that came after are registered in i think class thirty four which has to do with tobacco products so that raises yet another statutory interpretation as to whether the way you interpret this is is really the same class  goods and not like you would in an infringement context which is substantially the same or potentially misleading or whatever so what is your response on that that it should be interpreted the same way because the criminal provisions have this one to one relationship that the defendant engaged in counterfeiting the counterfeiting must be of goods specifically for which the mark is registered that's a very tethered one to one relationship for criminal liability that same language is not used in the civil provisions when you compare eleven sixteen to eighteen u s c twenty three twenty that you do have that language that says for such goods or services sold and the question is if the goods or service sold under that mark because at that time you only have a mark for food products how do those other physical products fall into that category because that language for such goods should be interpreted the same way it has for a century really with respect to trademark claims and it's exactly what you said judge if they're related products the trademark holders rights are not limited to the very narrow classification and this is because we cited the case the same goods even though i think we have a case says savings such goods is not seen good such goods as the goods being offered are sold by the party who has the trademark and that party if they have related products if the products are related then their rights extend to the related problem and what good would it be to require having to have a register mark under eleven sixteen if we adopt your interpretation well you'd have to  mark we still have a register mark right i understand but if but if it can relate to any goods it's what the registration becomes more than a registration it became it becomes basically an exclusionary shield right no because it has to be related to law i mean that the last clear if you know chapter and verse that they have to be related a party can't just take protection over you know cars and suddenly say that the act of selling pens is related i mean the law is very clear about relatedness and this is well established in eleven fourteen where else do you get the first such goods or services in the statute i don't think you get the exact same words anywhere else you get in eleven fourteen on the substantive false designation claims right but that's a different category than counterfeit claim correct you know that's what i'm saying do we have any any other place in the statute that we should be looking for this language for such goods and services sold no you don't but i would urge the court to look to the six circuit case and lack us where the registration was not on exactly what the defendant was charged with in civil counterfeiting the court said they're related going going to one of things you can see did you you can see that they're not the same goods correct correct no i mean that registration was for so let me stop you there and going back to judge last question then if if if we do have case law that says that requires the same goods do you are you arguing that that definition should be expanded to include same type of goods or what are you arguing that that includes related goods and here the factual evidence of how these two were related was given to the jury the heat management device sits above the water i mean it's not a question of unrelated products you products are actually used to gather the water defining what yes your honor and i suppose the final point i see i'm very long time but i do want to make a final point which is even if the two million dollar verdict is gone it's taken cloud still prevailed on liability at summary judgment on the non ultimate pieces of relief would it need to go back to the district court could determine you know proportionality and all those kind of things with respect to the fees you know your honor for this reason this court's opinion and traffic school dot com which was under the much harder exceptional case standard pre occupied fitness and pre son or from this circuit that case held where you had no damages just a liability finding and an injunction and w there just as we have a willfulness jury finding here there this court held that as a matter of why it was exceptional so i think this court needs to reverse the district court's conclusion that cloud didn't prevail and and in light of traffic school conclude it's exceptional as a matter of law the only question now is just to calculate the fees that's it that's all that's really left on that side of it and we'd be happy to have that before the appellate mission or hair of it gets sent back it gets sent back but it's just a calculation at this point  and all of this was a liability finding somebody judgment federal trademark infringement federal false designation of origin state unfair competition claims state counterfeiting claims and then the state statutory unfair competition  today if you would raise and prevailed on this registration argument at a motion to dismiss stage so why should we just told you responsible for all of this seven items only two were registered as identified in the complaint the rest of the five of the other items were on register so so from our perspective from our view this case was primarily a case of infringement of unregistered marks and then we went through all litigation and then in summary judgment when they filed summary judgment their issue was simply as to liability it was registered what type of product was covered what type of product may not have been covered so what do you shoe of registration it's not an element that is required for liability the issue for registration is only an issue that is required for statutory damages of counterfeiting goods you can still get actual damages but if you're going for statutory damages statutory damage has been carved out as you know something that is available for the there you've got a big legal issue because in the counterfeit world which is different than likelihood of confusion world which is your normal infringement claim you're already right there had a legal issue of well does it apply is there a liability where the so called product wasn't the same as what the registration was so before you can get to whether there's counterfeit you know what the statutory damages are and whether it's willful and how many times that cetera don't you have to know what your counterfeit claim is how can you get a summary judgment on counterfeit if you don't know whether the counterfeit goods qualify asking about the counterfeit how do they get if you had said to the judge as summary judgment look they only have to register it marks so if there's go liability for counterfeiting it needs to be on the same goods or maybe it doesn't mean their argument is it doesn't but was that ever brought up to the judge that wasn't brought up to the honor not by us and not by them look i know that that's really that's the crux of the issue here because you go through that then you go through a whole trial and at that point it's not till after the trial right that you raised counterfeiting claim which is different then you don't have to have registered marks to have an infringement we know that but on the counterfeiting claim if you are right you never want to go and that claim would never have gone to trial but meanwhile we have a summary judgment where that doesn't get addressed we don't have a motion in limine to strike all this now because counsel has become more learned on the subject they don't have a change in the jury instructions it goes all the way to the end so and that's what's extraordinary here so why why would we now up and it's like years of litigation and a trial when it was not rai so once again going back to you know the the primary issue in this case from our perspective that it was a infringement of unregistered marks and even in their summary judgment motion it was strictly related to the issue of liability what was registered and what was not registered and so when was the very first time that you raised your hand and told the judge about this problem when they selected statutory damages over actual damages and there  meaning the point is right and they're entitled to make that selection i think any point in time in post catch at any point in time before final judgment this issued and they made that selection they explicitly explicitly said we are we're not seeking actual damages we are now seeking statutory damages they made that selection i think the end of their case in chief in that and at that point at that point at that point and you know that's what went to the jury right the world is statutory damages went to the jury at that point oh everything ready to the point they make that is at the end of their case in chief right so now we still have your case we have their rebuttal case with the jury instructions conference with  it included your instructions for all the causes of action including actual damages a man or a savage but then you're saying that at least at the time they said we're going for actual only yes i mean scuse me for said to me well we've got at that point i believe you know we had half a day of trial left and the district court judge at that point said we'll hold on to that will deal with that tomorrow which is the day after and then the case ended  statutory damages it from our perspective this entire case was about infringement of on really should mark's that was our perspective and then at the very end they said statutory damages and that's that's what we were is the issue and i believe that the was because he had realized that in the summary judgment order he had referenced the wrong statute and so i believe he wanted to correct that  reconsideration so that he could correct that i think that's why he asked us to do a motion for reconsideration the we had raised both issues go to the pre registrations in the post registrations in our first post from ocean and at that at the judgment stage on liability did you say that because it read that there can't be liability because on the registered marks they don't correlate to the marks at the summary judgment case because i don't know if that's necessarily true i think i think the key issue of registered marg's is only a political i thought i believe for statutory damages it didn't didn't you can't even have a claim of right to be a motion to dismiss so in my head the issue of registration is only applicable to statutory damages because that is one of the required elements for statutory damages and in in s judgment stage they haven't made clear whether they're going to seek statutory damages or any kind of damages they were simply asking for a finding of liability and i don't know i don't know if it's just a terribly true that for liability of counter now if i may your honors i would like to talk about the issue of injunction that was that was that was issued by the by the court and the injunction i think was the order of injunction was an abuse of discretion simply because the found that there was only one instance of infringement in this case and i was april tenth two thousand and fifteen there is no finding that there was if arrangement there after in order to dead injunctions as of as has  been established you have to be able to show factually that there is a likelihood or you know that irreparable damages were would occur if any junction is not issued and that was not less an injunction had been issued this was entirely based on a presumption of probability that doubt you know because we infringe the ones that's probable or possible that we're going to infringe again and that is not the standard for an injunction it know the judge found that the claims for statutory damages lack merit i think the judge said that a simple search of west law alexa's would have revealed dad you know early on but then we got punished for that i think the owners for that should have been on the plaintiffs for raising that claim to begin with it has been established that you know that you can raise on meritorious claims and for us to be hit for you know for not raising it on defen damages requires to register mark so it is something that they never should have asserted to begin with when they had to get registered marks and they argued that the law is a continuance issue well and that you were continuing to sell well that was they they said the statutory they do they sought statutory damages for three of the other five or their marks two were registered but were not the same goods right and then three were on register that time of infringement and i think the judge indicated that a simple westlaw or lexus search would have revealed that those circumstances do not married in a statutory damages right based on case law based on congress's legislative intent based on the statue itself i think the judge said this you know is clearly not a political a simple search would have revealed this but then the judge blamed us for not raising the issue ea in direct response to a couple of points number number one where we just ended on the injunction the factual record a trial which the district court obviously had for purposes of fashioning the injunction included testimony of pages thirty and thirty one about the damage to consumers health of using counterfeit products they could even tell with the testimony and the page thirty four those are testimony about the fact that cloud only sells the authorized dealers because it wants to maintain the reputation integrity of its bran d so those are the factual the facts exist in the record the certainly undergird the injunction with respect to the assertion made that you know they had no idea that statutory damages were a big deal until you know like we just  sanctions against them which were affirmed for refusing to show up for deposition so what happened is what let's let's just take counterfeiting in your view what was the basis for summary judgment on counterfeiting what was statutory damages have been taken off the table to rule twelve motion motion for judgment pleadings will fifty six any time for when you're going against a counterfeiter and they've you can only prove twenty products specifically and they refused to give your records obviously that changes the o litigation i mean put it statutory damages exist from congress precisely because substantively the law says you can't get records improve so there needs to be a hammer divorced from what are all obviously very very low actual damages that make the cost of litigation impossible so if this had been taken off the table early obviously the case will resolve with an injunction and something else earlier we would have come up on appeal to question the statutory damages interpretation early on this is why when the court looks to its case on r a jury's verdict it's tethered to the fact that it must only be used if the argument literally couldn't have been raised before and here of course it could the district judge himself concluded that it couldn't should have been raised before so on that basis rule fifty nine relief just simply