in then in order to facilitate the argument i have provided the court with two demonstrative exhibits adequately in its demonstrative number one and number two and those are  time still has and their display beside them this week name and the current action we're dealing with demonstrative number two and have a problem these complaining  was going to impact on this case and that to the extent that abercrombie argued as we did in the first case no likelihood of confusing under this lake would factors that we were have been some changes there have been changes your honor and i believe that was one of the principal errors of the love because i believe that the court below did not appreciate as fully as as perhaps he could fairly significant change because in the initial case moves create was arguing reverse confusing and the whole focus of attention was on the purchasers of the creek a losers who are younger and the purchased apparel are more likely to be confused and we should not be traditionally stopped from making that argument so what do you think the bottom line should be so that when they come they can tell us well you are all but would be the bottom a couple of reasons one i think that the that the district court made another significant error and that the district courts failed to take into account post purchase confused he simply confusion and said he determined that by looking at a purchaser who buys a abercrombie sure and a blue streak sure and puts them in the same drawer and he wouldn't be confused and the fact of the matter is post purchase confusion deals with a n here the district judge failed to compare the real world moves marks that are involved in this case there was an imperfect photograph on the mast head of the catalog provide that yes we know now your honor we did not the garment is not at that time most great represent of the court that they had not gone into production with the garment so the garment was not available they certainly post purchase and we would maintain also demonstrates likely confusion point of sale and the fact that we argued no likely confusion with respect to the first case should not in any way  company here comes of somebody with the most your company decides it wants to use the moves and they did and there was subtle similarities and differences confusion to either point of sale perth purchase or post purchase to a consumer who actually is out there in the market purchasing the shirts and shorts or to post purchase somebody who sees them and that someone of either other than the purchaser sees them on the back of the person who did it and i think that what you need to do here and appropriately should be done is to look at the loose marks that are involved in this case and determine whether or not when moose creek modified its first series of mosques and brought out to mars that we think consumer category when they looked at those marks would be confused as to whether they were abercrombie march or not after and we think of what was going on here is they made these t certainly if you look at the sports former case which we cited that this court is not substitute its judgment without the district court we have stated throughout this appeal and below that marks have been changed from what they were in the previous case we are not saying that absolutely every single thing was done because of the previous case that would would have been less interesting to be sure that certainly not the case what we're doing here  changed and what the district court did here was not some sort of off the cuff or you know casual analysis it took a look at the materials for it the court was very careful very familiar with said and what he said was you took the position first time that there wouldn't be confusion that these marks were not similar you can now come in and say they are even though they're changes clients made the changes on the basis of their marks on basis of the moves create marks of the un rebutted evidence from the declarant that we had was that they took their previous marks and they had a variety of marks as you can see some of which were silhouette court was wrong you tell us what's wrong well i think there's a couple things that have to be considered there first of all is there was consent to use agreement a settlement agreement in the first case which allowed the parties to continue obviously to use their own mark perturbed about and wanted to prohibit us from doing that we refused to not put marks on our clothes on the outside of closed as a solo act and we did agree to consent to use agreement a contract that defines  retailer point of view because their goods appear in this very distinctive abu dhabi and fitch setting with their own house marks in their own stores only on their websites only so it was not cut and dried in the first case that you look at that there was no consideration given to the broader purchasing public we said quite strenuously i think that read the distinction between retailers and non purchasing and the general public purchasing was a false distinction because it ends up to be confused in the minds of the general public ok but i will give you this if we're saying that this is now a forward confusion case versus a reverse confusion case that is a genuine difference between the two cases where does that get you at the require that the court pick up on every single thing which was said before and rely on it absolutely if they have it under the new hampshire versus name case in the in this circuits result a case it can rely in part on that there were factors that were argued guarding the general public in the first case by abercrombie and fitch that i think are absolutely applicable here the crowded field doctrine which deals with the strength of the market abercrombie's that in the first case that the scope moves that were involved in the last case and found that they were similar now that you've changed your lingo i'm going to find that those are not somewhere to instead the court at the behest of the pla the fact that the side by side can surface and point i think is interesting because the last time around abercrombie said that the side by side comparison really took you to see what the marks look like in the close in the distinctive abercrombie and fitch environment and they say if you look at them not side by side it is the appear in the marketplace as ordinary purchasers and since the words they used last time ordinary purchasers shopping in the ordinary way i have to deal with well i would suggest that you look at the supplement expert excerpts of record three sixty three to three sixty four because this is where it explains where abercrombie specifically explained that they were looking at ordinary purchasers and how they reacted to these markets in the marketplace their analysis last time was not restricted to retailers and as i read the reverse confusion versus the forward confusion cases  entirely to retailers but also included now at the most i think where this got to is to remount back to the district court to consider more explicitly perhaps than he did the differences between a reverse seemed to me he wasn't going down the wrong trail all of that is shit i agree i think he did mention that i'm in a sense probably conceding a little bit more than my i would like to concede in the face of the argument that there should be a complete reversal in this because he got the facts wrong but i would say two things about that yes he did mention that and secondly just you know how we've got to change things  experienced arguably the group of individuals that you're looking at who would be confused in a way sort of similar to the post purchase confused and there's enough in the record from what judge mad max did on the sleek ro plan we came to post purchase confusion in this case judge matsch just misunderstood it as being similar to point of sale confusing the customer's confusing and the and the the point i would make is that that is fundamental error that on post purchase confusion it's after the sale and if you look at the marks that are involved here in the real world the similarities would suggest quite strongly their likelihood opposed to the marks in the other case i would say too that the court should look at these marks in terms of not only point of sale confusion under slick craft but also post purchase confused and i would say third that in doing these examination or comparison the marks the court should look to leave marks as they appear in the real world the actual market may well be if we go back and remained that moose creek will now be able to produce a shirt and we can then show him the that it should not think it just will stop all that would not be applicable to post purchase confusion should look at after the sale confusion of non purchasers with regard to their marks and then when you look to the similarity the march you look at it in the real world with respect whatever you want to the use then and make it a standard because you had the resources to do it and so here we are now second time around with a moose and if we remain maybe the third time around with a moo what i think we ought to at least try to resolve it so that it doesn't keep bouncing back and that's not just your that's do you have various do you you could spend a lot of money bouncing around this thing but we've