court had another preference of course i would be happy to address that the problem is several fold your honor with the tarnished image issues the district court in a published opinion which is the only at published opinion in this district addressing this issue is held as follows quote tarnish what is only a form of dilution to tarnish one applies only when the senior uses mark is distinctive or famous and then concluded correct correctly that because plaintiffs marched are neither or are not famous are company is not a rich and famous company its mark is not famous that there is no protection now that's just wrong as a matter of law in this circuit and everywhere else two purposes of the lanham act one of which as the supreme court said in park and fly is to secure to the owner of the mark the good will of his business that's one of the purposes of the lanham ac tarnish has been recognized all over the country and all of the courts in all the circuit courts as a as a fundamental analysis to be applied in confusion cases and i want to make this point underscore this point every chase that is cited in the in playmakers brief on the subject of tarnish might was a confusing case none of them were dilution cases so i think when the district court concluded that tarnished that was limited to dilution and therefore only a political on the federal aleutian act the court made a fundamental error which requires reversal not only for our case but as a matter of precedent in this district harnish meant the concept of tarnished much as i think we all know preexisted the federal anti dilution act it existed long before the federal to lucian act when there was only confusion cases the federal courts has ported the concept of tarnish much into the federal and it dilution status but that doesn't take it out of traditional confusion analysis a fundamental concept in which the district court made a fundamental  the district court with the results of the district court's conclusion is that tarnish night which is also always been a fundamental aspect of confusion cases is no longer available to any company except a rich and famous company with a rich and famous mark again fundamentally wrong that requires reversal again for the benefit of district as well as the plaintiff in this case now the court w the point of clarification to the extent that's necessary is that where there is overwhelming evidence of the junior user e s p n in this case use operations who testified that declaration that he had been called by half a dozen different people some of whom were clients to some weren't expressing confusion and asking if playmakers was not concerned with this particular source your honor the problem any case like this is the market is professional football players and perspective actually more to perspective are aspiring professional football players and their families and friends that's not a market and one can go out and again in fact it's not your honor because the schools do not make that and that type of information available is for him it bought into double in the schools don't give you telephone numbers and addresses of the college athletes who are aspiring professional football players  the rules would not permit in my opinion a playmaker agent to approach a college football player who still had eligibility and talk about anything it's not the  eligibility iran is the n c w rules prohibit agents from making that sort of contact with college football players who still have their eligibility i think it playmakers want to engage in that it would be just fraught with danger both for the individuals who are approached as well as for playmakers which is which has to maintain eligibility in order to to function as  if i may get back to the tarnish manesh you there is overwhelming evidence in the record that the action of the potential class professional football players and the reaction of the target consumer class if you will the professional football players was overwhelming and it was so overwhelming that the series sponsor even though they took the position it was a fantastic show cancelled expressly because of the negative reaction of the football players and the national football league so the tarnish meant was so great that the series was dropped now from the standpoint of play makers the concern is not somebody who actually knows play makers to the appellant well because they would know that there was no association the problem isn't the fit when it went out process playmakers never knows the the the family the football player the potential football player who simply tosses the playmaker a letter of solicitation because they don't like the connotation that the significance of the concept of tarnish and here it is that the the reaction from the playmaker series because the audience the negative reaction of the audience to the to the to the play makers show was so great that that gator aid dropped its sponsorship of the program isn't the record that the advisor of a football player or a lot of the football players when they come out of college are not from sophisticated well later jaded families they decisions are made by family members often coaches ministers and they get solicitations from literally thousand one hundred agents the concern is because the negative reaction  the football community to playmakers has been so strong that they will take on the plane maker solicitation and flossy that that play makers will never get to be in that short list of five or so agents or way beyond that would make it a very strong market and sexually if that if that is true playmakers when the mark was adopted by the makers back seven or eight years ago it wasn't in the dictionary you could not then there are no current dictionaries are dictionary stuff that were current then it had playmakers it a playmaker was a point guard on a vast ball team at least two of you might remember wanna what the so the concept that you ask what it's playmakers mean at the outset ten years ago it was used hardly a tall it was not a term that was used very much it referred to the extent it was used to a point guard on a basketball team who brought the ball up the court and then distributed it to another player who would then score i occasionally let's say over the last five years it would also be applied to a quarterback he was a playmaker bobby or bobby hall might have been described as play makers on a soccer team or  our right hockey team the playmaker is the person who brings the ball or the puck up and distributes it to somebody else to score that seemed to be a fantastic name for a sports agency it did not refer i'm not a power point guard and i'm not a quarterback this person and this person whoever was on playmakers they were not refer they playmakers itself was obviously not an athlete playmakers wanted to represent athletes so the connotation was and is that the plane maker agency would sort of get things positioned for it athletes it would set the ball up and then distribute it in a way that the athlete represented by play makers could score and the comet big time player more recently in the last few years play makers has begun to be associated just a good off it's a player who makes big plays it occasionally is use for a shortstop for a second baseman who makes a double play start to double play and invent vase ball but it is a spectacular name i think it would be either arbitrary capricious and in this context playmakers with that background did not refer to the agency it was the notion that the agency would perform that function for its players i think while you're on it is a big deal to get something registered oh no sir your honor for example right now e s p n has applied for a trademark e s p n wants to trademark playmakers for office does a lot of trademark work and it's very difficult to get marks approved and registered beef studies because there are so many companies into these out competing from ours that isom is partially why trademark law is no longer something that one just sends in something to thompson thompson or someone who nobody had malpractise nobody had it and then the insurance company started s money over there and then they say well we think you know i think people around our meetings oh we just paid lawyer up and sacramento i remember that he just they just got nailed for fifty thousand really does need to be a grass because it it is an important part it isn't traditional part of confusion analysis it is essential in a risk and i reversed confusion case where w probability likelihood evidence of a lot of a likelihood of confusion where the junior marker the junior user overwhelms the market with a negative connotation of the identical word play maker in the factors though not robotically she's not supposed to do that and she didn't she weighed the factors as seemed appropriate to heart which is exactly what she's supposed to do which the brookfield case requires that the trial judge is supposed to take the relative importance of each factor in this in the specific case and decide how important they are that's what she did she found five of the eight factors in favor of e s p n only one modestly in favor of the plaintiffs and two were neutral she then synthesised all the factors and so she both deconstruct the fact this because she looked into each one individually then she looked at the composite and she called it still a lot of commercial exploitation of the playmakers still going on in fact in my hotel room last night i was watching e s p n and i saw it here in seattle and i saw a promotion for the d v d series of play makers which is out now  there are six figures worth of the box and it's been produced there on retail today in seattle and elsewhere throughout the united states they're also available on e court will get to tarnish mint later which is not even what we'll get to it and so now this court reviews the trial court's findings which is what the area we're going to hear not really into the law under a plausibility standard that is hard decision plausible and whether or not this court might have weighed factors differently that's the interstellar case interstellar starship case or even if this court might come out another way that looked at all those factors that's the sports forum case all ninth circuit you don't just reversed the trial court because you might have looked at those factors slightly differently or even perpetually even dramatically different differently if this plausibility and now judge judge peckman decision was on december  sixteenth and actually there if there judge prager soon decided the mattel against walker mountain case that was december twenty ninth and in that case the bar has been raised even hire for over turning a an injunction of this nature because once the the literary title which is what play makers is is chosen and that title is relevant to the underlying work it can't be enjoined unless explicit course of first amendment considerations it can't be enjoined unless it explicitly misleads that means in other words if misleading here indeed clearly this title is relevant to the series and it doesn't even implicitly mislead anyone as to whether or not there's a relationship between  confusion is a very limited doctrine it's limited to where the parties provide identical or at least logically related services or products most cases in the ninth circuit find against someone who's  claiming reverse confusion and probably the outer limit the very outer limit of a reverse confusion case is the dream works case but unlike here in that case you had both parties in the entertainment movie related businesses and a strong mark and the context was different too because the ninth circuit was saying in that case summary judgment should not have been granted to the defendant  have the summary judgment grant affirmed court said genuine issue material fact as to whether or not there's a likelihood of reverse confusion so let's remember so there is no case that is remotely near this case in terms of the ninth circuit's jurisprudence on on reverse confusion nor should there be because you know it's almost by definition the plaintiff's mark is comparatively we that's we have a definitive ruling weak mark in this case specially in terms of what is on the record in terms of how much they've used it and so without significant brand strength built into it through recognition over time their market is incapable of being seen as a potential entrant into other fields which is typical case that you get we have a phone we're confusing case that someone with a real brand who's out there making something of it and potentially is seen as being able to exploit that brand into other areas of trade claims that some other party should be denied entrance so in this case most perverse confusion cases the plaintiff is sort of pleased to be alive in his own field and that's the framework that that we're in here mark similarity you're on a race that the word play maker is used by both parties it's both were trying in their own way totally independent of each other and for their own business reasons to trade upon the meaning of a term in sports someone who makes the big pla well once you get past that they make sure they both used to sing words as hundreds if not thousands of other companies have and that's in the trial record unlike some other may have been made here that's a new trial record there are many other companies out there who have used this designation yeah plays you have probably dolls you have sports related companies you have all kinds of companies who are using yes so once you get past the fact that he s p f and and the plaintiffs use the same arc the way each party presents that brand are in context and now here what tipped the balance remember judge beckman says charter is to weight each factor individual ie as as the case is presented to her what's important on the facts of every case when you do one of these trademark infringement matters and what really tips the balance on mark similarity in this case is e s p n s house brand i think you can there's no question that they're similar once they're presented but even if you wanted to look at what else is presented it's e s p n s house brand that makes a tremendous difference because it's always or almost always used in the title and that means a lot in this case because the services are so dissimilar this house brand e s p n dispels confusion unlike language underneath known creator of plush dolls and so a company came out with a wedding bear brand doll little company outcomes rus very with another wedding brand wedding their brand all so you have two companies producing the identical identical product and rush very claiming well we use our house brand well that really doesn't dispel confusion because russ theory is known for making players that hurts that makes it seem like the other guy is is infringing rus reading their market that's a completely different case here you've got e s p n which is in the entertainment business has no connection whatsoever to the agency business professional agency business  as it's listed on page twenty nine with the language underneath it e s p original energy mysteries virtually always not completely always for example there might be a radio spot for you know you're not always going to see the brand visually presented but here the way that you can tell that first of all just logical that anyone who talks about look at the look at the look at the record look at what the publishing that's been generated and it hasn't been it was controversial the controversy was what white it may or may not have put players and that might have disparaged the league has nothing to do with tarnishing any of the other companies that use the the name certainly isn't a proof of that in the record just as you're on a pointed out but let's go back to so there again that that brand whether it's you know whether it appears right beneath the word playmakers every time and it usually guys almost all the time but it's even if it doesn't the public knows we talk about public you know what the public knows the public knows that's an e s p n program so there's your similarity is just not even an issue tarnish assume reverse confusion i mean us which means likelihood of confusion or to have like in order to have reverse confusion you have to have a likelihood of confus it is is not relevant when there's no confusion because maybe you know if someone feels it feels tarnished that's not really relevant there's station unless the tarnishing is actually a result of a perception that there's a relationship between the two companies using the same brand that hasn't been proved here that's what the sl factors are about you go through the sleeper factors to see whether there's a likelihood of confusion so much that there might be tarnish mint but there is they can't just be a pure cause of action for tarnishing it sitting out there in the thin air the the problem here is there's no proof of a likelihood of confusion on the record and so we're almost talking about developing a new twitter arch which is like a standalone tort which is no circuit no court anywhere in this country has adopted or accepted tarnish right could go to as a likelihood of confusion and the damages are x because this is been a really tough brand for my client to be associated with because there's an official there's a perception of official relationship there's no proof of that in this record and therefore tarnish mint is irrelevant to this case and as i say the judge day but there is no doubt and there is complete agreement between the parties on this record that playmakers has a very distinct meaning in sports just as council described the pla maker is the person who makes the big plays and that meaning of the word applied before the s p l and came out with its program and applies a and came out with this program that word hasn't changed the meaning of that word hasn't changed and if it did well then the negativity would be a problem for the defended that this court would not redress because if they're the ones who chose a name to begin with that they knew other members of the public would seek out occasionally and hundreds have on the record because of the positive connotation that it that is it has had so they soon the risk that if it gets negative this happens you know plenty of words the meaning of words changes over time but that's no cause for a finding of liability unless there's a likely confusion there under a first confusion theory which is very narrow and out of date in this circuit so we're far far you're on a very briefly the con the notion that reverse confusion is narrowing the circuit is flatly wrong your lockhart's will tell you that reverse confusion is a strong doctrine in this case and framework stand prototypical case for it reverse confusion is where a senior user who is small has a mark a junior user who is large and powerful and dominates and overwhelms the market with average tags and sets up a situation in which someone might conclude that the senior user dream works or play maker is trying to trade on the junior user's publice a day and or where there is tarnish mint that's the law in this circuit the house mark in a reverse confusion case which they see as the use of a how smart exacerbates the problem it doesn't help it in a normal direct confusion case use of the house mark it's been said that maybe it will maybe it won't help in a reversed confusion case such as this one the use of the house mark exacerbates the problem because as in this case this is all in the record e s p n features itself as a sports as in the sports business the dominant intergalactic sport medium in the world it has of play makers on t shirts it puts playmakers on hats it has sports bars it has places that rate players for going to college and that rates players are likelihood of going into and to professional football the playmaker series used a e s p n sports figure on the sideline figure in the program itself there is an incredible playmakers introduced evidence into the record of a statement by michael eisner who is the chairman of the designate that is the owner of the s b and that the series would not be re recess till tomorrow morning