my thank you are the amended permanent injunctions carve out set forth in sections one a and one b permitting defendants ongoing use of the sun earth trade name quote to the minimum extent necessary as required by law or ordinary business customs is inherently indefinite vague ambiguous and violates will sixty five be held in this area i have no difficulty business customs is not the term that a person of ordinary understanding would have an ability to appreciate what conduct is the end and what conduct is without the scope of the injunction  it sounds like you're not complaining about minimum extent necessary is that right actually the objection is to the minimum extent necessary as required by law or ordinary business customs the objection is to that entire i know that but i'm trying to narrow down how i think there's three parts to that there's the minimal extent necessary there's that as required by law and your response to judge kozinski question was that seemed to focus on ordinary business customs and the required by law component is also objectionable objectionable because basically it incorporates the statutory law into the injunction problem that's the essence of the problem but it's only magnified by the rest of the language to the minimum extent necessary as required by ordinary business customs but it's ordinary business customs to operate within the united states that was the problem they the opposing counsel posing party came in and said look the injunction the preliminary injunctions too broad we can't import we can't we can't do business and so judge wilkins trying to get get at that and i you know some point it's  pretty tough to draft an injunction i have done it and and so i'm trying to figure out what more what should she have said here well in order what she was required by rule sixty five to create  an injunction including carve outs right that would be understandable by the ordinary person with reference to to the document itself right i have a grant to that so what should this have said sir we believe that the carve out in the entire but in your case they do or don't do it if you think they are violating injunction you go to court and the judge says yes so now there's no notice problem so why do you have  standing to raise this kind of argument anyway the carve out is for a stance a bully the benefit of the party who's right is being nice and you watch them do something if you think th coming in and telling the court what they think is ordinary business customs which by the way is a variable standard may change over time then they might have a objection to that and saying look you are exposing us to possible contempt based on a standard we can't understand or apply ex ante we have to come into court and find out from the court in contempt or not so they can have i mean i can see where they might object to it wouldn't it that's the second argument yes you'd have to argue that's an abuse of discretion not that it's big well the indefiniteness of the language we believe is a question of law particularly organized as i understand i understand but supported not supported factually what the record says is that there that the continued use of the trade name causes a likelihood of confusion in the marketplace and is confusing to consumers that's what the record says so the record support the carve out at all that's essentially the second argument i understand that the second argument raised on appeal is that the court by allowing the continuation of the use of the trade name in the infringing way that violates both federal wall the importation provision of eleven twenty four and the california statute granting exclusivity to trade name that the court affirmatively allowing the continued use of the trade name in violation of substantive federal and state law essentially what it does is it grants a perpetual compulsory license from the plaintiff to the defendant royalty free but effectively does not effect a plea but this is the part that so paradoxical to me at least on my scorecard you want us to put a finer point on this injunctive remedy so you one you want them enjoined less more specifically we should talk about that but you've been arguing a different point for the purpose of that point you have to assume is a convo ok otherwise you're just choosing to rabbits well we think that the same relief is required under the first argument and the second argument that the car about innocent not the answer the first argument where we do agree with you is ok so give us a more specific language that would work for you way i didn't hear any more specific language so if you want to offer it to me this be the last chat no your honor we do not have more specific language and the reason we do not is that because it would not be supported under this record particularly in so far as it would a one b permits the trading usage notwithstanding the likelihood of confusion there is no subsidiary findings that the use of the trade name to the minimum extent necessary as required by law ordinary business customs would alleviate the you likely hood of confusion the record is missing on that all the all the record says is that the continuation of the use of the trade name is likely to cause confusion  the market the exceptions stated in the opinion are based on considerations of equity but without support in the underlying underlying factual findings the district court has expressly permitted conduct that is rendered unlawful by federal in california law and the court did so without addressing the issue of the conflict of the california statute and the and eleven they have a united states subsidiary in through whom they can import these goods they were doing that until january of two thousand and eleven under new under the name lingo ningbo solar in china and there's also credibility about what the motive was for motivation was for using the name and changing the name of what not why would be this is not a question of them kind incredibles or forgive me i didn't mean to interrupt you but he found the protocol in there in the reason that they were record important goods into the united states under the new name earlier they in fact at the time of trial were importing goods under a private brand labeling they could do that now if they wanted to they own the record reflects clearly the reason they don't want to do that it's simply because they don't want to do that the question of intent is not an issue the question of what they were doing is that you're missing a record i think what she found which is what she heard certainly and she found credible is testimony that they have a different reason for wanting to do that they were using this name when they want to go to a worldwide market and use the same names she heard that right right right she did hear that but what she did and what this  junction does by allowing continuing infringing use what this injunction does is allow a continuation of a likelihood of confusion issues not intent the issue is are there findings of fact in the record that supports the ongoing infringing use of our trade name i'll get out of your way on this in a minute but just a second but it seems to me that all these arguments lead to the same they're all roads to the same place which he won no likelihood of confusion which means you want  the name well in view of the court's findings of the likelihood of confusion and no other factual findings that support ongoing tradename usage yes we want no continuing in french mint and by the way that's what the statute says as well the courts are are to have the power to a grand injunctions according the principles of equity in and upon terms as maybe doing reasonable dot dot dot to prevent a violation under one with the sun earth infringing mark right directly on the product there is an obligation to identify the manufacturer but they could identify the manufacturer is there a wholly owned subsidiary or there are those private bran labeling that's all that they also do so they have a wide variety of options and so do we frankly we've private brand label some of our goods as well  that's the label i saw yeah hoping that that is in fact the label yes but there's no subsidiary finding that they use the ongoing use of the trade name and also has many other implications but there's no subsidiary finding in this record that that use will not cause a likelihood of confusion in fact the record says that it well this says the ongoing trade name usage by the defendant will cause a likelihood of confusion in the market that's what that's how the posture in which the case comes to the court three four by six i think is a better is a better estimate you know you're on top of the one that appears on those on the panel telarc how large of those panels i can tell from the picture i don't have the panels or are pretty good size  infringing the name to the minimum extent necessary as required by law that's essentially the essence of our argument here is that the court's injunctive order explicitly allows conduct that's explicitly found to cause a likelihood of confusion on our factual record that's i'm looking at eighty one is this the label that's timely being  being used at the time of the the court ruled that was the label that was substituted on the day of the hearing on the third motion for contempt yes and my understanding that's continued to be used today yes that's the symbol  solar and then the lower half says n b seller and i have to look to get to sun earth at the very bottom manufactured by sun or solar is that right that is correct and we're looking at about six point fon identifying it going in have you challenge the fact that this continues to have a vacation coming out of us we have we had no registered mark at the time we do have a registered mark now now we have not  as with this label well your honor that was the third the essence of the that was the entirety of the third motion for contempt is we were challenging while we were challenging at the time the conspicuous use and went to an in the but the court specifically overworld our third motion for contempt and effectively blessed just this particular label notwithstanding the and at the time the court of not it entered a permanent injunction saying look fine again to customs no problem but once it leaves customs it's not like say made in china identifying the place of origin is required by law you have to have if i remember my trade law correctly from my many days of practice you have to be able you have to leave if occasion of the country of origin if it's not made the united states that you can't remove but there's nothing that says that this label has to stay on the product when it's introduced in the stream of commerce here if you think this violates injunction you should go into back in the district court and say make him take off the label and make him take office much of the label as this place on earth you're already like you haven't done that have you respectfully there is a difficulty under rule love and to for us to go back to the court and object to the very same label that we've already litigated in the last i have a concern about that personally i don't understand why an injunction talks about what you need to get something through customs it seems to say nothing at all about what happens when you leave customs and if they are still having something on the product that violates the terms of injunction that is not necessary to get the thing for customs consideration with respect to the ongoing trade name to use our view that the label ought not to be there once it's clear us customs did you argue that that is contempt now mark it seems to me you just made the wrong argument you need to go back to the court argue that because i see nothing in the injunction that allows them to take this out of customs and put it in the stream of commerce with this label on it engines there are two theories besides customs your honor the first one is that the state of california gives certain tax credits and in order to qualify for tax credits they send inspectors around to look at the units to see what in the new factu customs and border patrol for purposes of tariff charges and then it said to other government entities such as the california energy commission that's rustam is will be eligible for financial incentives and tax credits which i think is just because he's point and then three to end customers for warranty purposes that's correct ok so here so my problem i can understand that list i have i understand that list but i think opposing counsel's argument is that rule sixty five requires specificity and the way that the injunction is written it says as required by law to do business in the united states that subjectively verifiable ok also says or ordinary business as required by ordinary business customs operate within the united states  and in so what's the answer to opposing counsel question that i would have to go to look at page forty five to sort of put that in context is there problem there on vagueness grounds i guess the problem i'm having with the question your honor is that this particular label was in front of the judge and when she crafted language it was intended to allow the use of this label and so i pressured judge christie trying to help my opponent but of this case goes back to this judge and she's passing on this label she's already passed on it and she draft this language to allow us to use a slate right but but i think there is an argument to be made that there is some squishiness in this ordinary business customs whatever necessary the minimum set necessary as required by ordinary business custom with to operate within the united states and i and i found myself going back to look at i said page forty five to figure out the context in which she was placing that now it is important to me that posing council can't tell me how this language should have been drafted any more specifically and that's certainly very challenging to do but you see the problem is we're having this conversation about is that on the label is does that have to be on the panel do the have are they subject to inspection by these inspectors and we don't get that from the face of the injunction your honor respectfully this is what district courts are for to hear people testify about what's rule and the rule says it has to be we have to be able to determine the scope of the injunction from the face of the injunction not by looking at the moving papers i don't have any problem with the scope of injunction when i look at the moving papers or the judge's findings on it but would you like to speak to this point i think it's the strongest point which is that it's you know arguably necessary to do that in order to place this in context i mean is it really just about importing goods you know it's it's not but it's certainly possible to read it that way at first glance well as i said on the factual record below there are three instances three reasons why this label had to be there and had to have this particular reference being monotonous but that's an argument that would have had to have been made in the district court and if it had been made we would have been able to rebut it wasn't made in district court no ok so the incident but there's a record that shows these inspectors come around for tax credits and whatnot and verify you know your right to see the sticker and i think you see that the equipment is actually installed is that right and to make sure that the manufacturers of same one i think i understand when you fill out a request for  guess the question i have is the one since he's asking which is was that is there some record that tells us it wouldn't have been sufficient for the owner of the panel to say here's my paperwork i don't know what i don't know what the state inspectors would accept the i understand the evidence is that you have to have it on the panel so they can check it but again you're in appellate court and there's a district court and they have to bring forward evidence and they didn't do it speech yes that's the exact size and you're right here out of that it's very small type of the bottom and if page six is a picture of the actual solar panel this is not the the other pro the other issue is the warranty coverage again the evidence was that a purchaser gets a warranty for ten years from manufacture and a couple years into it he may forget where the manufacturer was because he might have bought it from somebody else and so it's necessary as a business matter to have the name of the manufacturer on the label so five years into it a person goes out and say well who was this oh is sun or solar power this is just what the trial court heard and decided  clear error of use of discretion is not to know over a longer and so in pella court you know that would be the standard of review but that doesn't that's not the standard that the district courts supposed to use in the first instance that's correct exceptional case standard i believe is the language sense they use how much it lowered it so why should we send this back to judge welcome well because the senators changed yeah there's like a pretty good reason doesn't well they didn't make that argument but apart from that i well they didn't make the argument they didn't have a case at the time right they were bound by our prior decisions which now appear to be inconsistent with what the supreme court has set law change the law changes so i know this court can make a decision on this record whether it's close enough to send it back for honor we're asking the court to adopt octane the fitness standard and we respectfully ask the court to the court has a complete factual record on to make it to on which to make a determination of exception record is closed this is a this was a trial of a court the court found that the defendants knowingly adopted the name and mark in the united states beginning of two thousand and eleven with knowledge of  our senior rights the court found that six separate misrepresentations were made on material issues and material facts during the course of the proceeding court decided that an agreed that that had happened under the new standard we believe that this court can and should reach and determination of the exceptionality if the court believes based on this record that either we are or are not entitled to attorney's fees we respectfully believe that this court should so say so and we ask that the court do so there was a specific finding of bad faith by the defendant that the court overlooked and did not consider as a part of the determination of exceptionality and that's with respect to the registration of the son dash us domain name the court specific the trial court specifically found that was registered in bad faith in two points that i previously made we believe require a determination of exceptionality under the court's new standard under the supreme court's new standard in octane fitness for separate acts of can three found in contempt fourth found in violation of the statute but the court did not award sanctions but the combination of those activities under the totality of the circumstances justifies a finding of the exceptionality and in fact we believe that a