commerce as required for the lanham act to have extra territorial reach why wouldn't there always be in effect i mean i don't i've never bought jewelry like this but i'm kind of a camera b and if you look at the ads for cameras they typically have a north american distributor or american distributor and then they have gray market cameras where you won't get warranty service from the american distributor but the price will be somewhat lower and they're called gray market because it's not illegal or anything people were going back why wouldn't if the prices anyway or in israel say because of the exchange rates or because of the pricing of the market there why wouldn't i someone just bring him back and fill in here if they're sold cheaper there this is a different case than that your honor there is nothing on the record and there was no issue of any grey market imports into the end ited states from either kazakstan or israel which is where the record shows the accused items were sold and the agreement between the parties the so called jewelry agreement of two thousand and ten explicitly defines the territory as the united states canada and there's a separate agreement this fixed the caribbean there's nothing to foreclose my client a lawyer from selling its own designs which all of these designs are anywhere else in the world so i understand the court's a question and the issue of intellectual property protection for grey market goods is a fascinating one but this simply isn't that case there was no evidence on the record of any impact on us commerce  that we cited establishes that when there is no other impact on you to u s commerce then it has to be you have to show monetary damage to a u s point and we don't have that in this case the party that was statement saying ten percent more than ten percent is owned by a panamanian corporation and the principal is a french citizen who lives in hong kong and they directed the royalty payments go to a post office box in the republic of ireland so it's i guess it's a global village but they've covered a lot of are we talking about the first case now yes your hon whether it would apply and he he determined that the record wasn't sufficient for him to reach that decision yet what more would he need to reach that he would i believe under the we don't have a plaintiff whether there's damage or not seems to be a row that could have found that as judge kleinfeld suggested that gray market goods were finding their way into the united states and in fact the case law that is applicable i may have the name wrong with ocean garden there is a series of cases and in each one of those cases the impact of the foreign activity on u commerce was that the goods came back into the united states it's still true that when it comes to a permanent injunction if it does if we are firm all that happens is there's no preliminary injunction but the second case the partial grant of one leaving the second case aside if this case were to go back and share you all was able to prove that there was a substantial grey market then i suppose  could come out the opposite way on a permanent injunction to set right yes i understand for a preliminary it's came out there in discover secret and contract then child won so you are the appellant in that one i would mostly agree with one wrinkle that on the second case sherry all one on the contract claims according to the district judge they lost on the trademark claims and the reason that we're here from my client's perspective is that the preliminary injunction that was issued is internally contradictory and mixes those two things up  your position was the court couldn't really find the track without making some sentiment on the validity of the trademarks that is one of the two points your honor is correct the the the actual injunctive language is premised expressly on valid trademarks and border the district court expressly declined to make any finding one way or the other on that it is very much an issue the other ground for our appeal of the second preliminary injunction is that the district judge we believe made a clear error of law in finding in his ruling that a contract provision that was limited to the term of the agreement somehow had application even beyond it and one of the problems with the preliminary injunction is that the actual  language at the at the end of the district court's order disconnects with the discussion prior to it so clear error of law on the on the contract interpretation and the logical  impossibility on the contract application based on valid trademarks ok i think i've got my framework in mind now that silence can lead you craft your argument as you think that's sure to give yourself enough time on the other case because it's at least for me it's harder more complicated thank your own with the panel law because it enjoying trademark infringement but it made no such finding on such claims to the extent it granted preliminary injunction on the breach of contract claims those cla inextricably intertwined with the trademark infringement claims based on the language of the contract and based on the language of the plumber injunction itself it's only preliminary so always has to do is decide probability of success he doesn't really have to make definitive decision about whether mark applied yes or no your honor he had the court has to decide more than simply a probability of success and has to find irreparable harm and we have a strong argument i believe that if you whether there have a good trademark to this cable drury i know you're on it's a different issue that's what i meant in fact you that mark either by contract or by operation of law does that end your appeal from that it may well your honor but we believe there is a stop will either judicial stop will stop when police any kind of the stop will for the reasons set forth in our briefing and i can go over that of the point i'm having trouble seeing why there wouldn't be enough st p both under the doctor and the doc trying to rule that if you've operated under create mark you can't challenge it and also under can't act in a way that conflicts with your recognition of the mark well with respect your honor that last thanks the question of whether there is a valid mark but the district court i don't know about that it begs the question of whether the trademark is the cable design or whether the trademark is just the words but i don't know if it the question of whether there is a valid trademark i understand your honor i would respectfully point out that the the word marks are not at issue in this appeal judge gettleman is correct not be successful in a nutshell they fail because number one licensee is topple does not bar a former licensee from challenging the validity of the mark after terminations of the license agreement and there is a dispute here obviously whether the license agreement was validly terminated or not but that's an issue that the district court correctly said is preserved for trial made no finding on it number two a no challenge clause in a license agreement does not bar a license e from challenging the enforceability of a mark after terminations of the license agreement number three  conduct that was at issue in the injunction that was issued by the court in the second case was during the sell off period isn't that correct that is correct your honor and i sn't that sell off period part of the contractual relationship between east already it's part of the contractual relationship but it is a completely false legal argument  and no authorities been presented for the proposition that a contracted for limitation following term a nation of an agreement somehow extends the agreement itself i'm sure that the panel has seen a lot of trademark licenses and it's standard operating procedure when a trademark license or stops the license that they should see has x amount of time to sell off what they've got can be thirty days can be six months that does not extend the other terms and provisions of the license that is a bargain for limitation that was offered was all of the sell off within a period that was so provided yes it was your honor yes it was so then if you what stimulated my question about the agreement was section thirteen point four four it's after the contract is terminated licensee shall not use so that it's authorized in the territory any of the trademarks and this restriction show operate as long as the license or act continues to have exclusive rights in that trademark are you saying that that clause doesn't apply or that it is because you've gotten to the absolute crux of the matter the con judge in yellow in his order on preliminary injunction the second one that we are challenging at page in just i thought the critical statement of what the law was on that was the fifth circuit case professional golfers and it says after expiration of the license a former trademark licensee may challenge the license source title on facts which arose after the contract expired which suggests that the the stop the last forever and it dies only if some new facts would prevent the estoppel and there aren't while i have one central concern and that was but i thought the contract said that i will or after a contract term a nation sell anything that closely resemble the trademarks that's right if i'm right on that would that prohibition as a matter of contract require that they be valid trademarks but would they be as a former distributor precluded from selling something that closely resembled channels product whether it had a valid trademark the clause in question judge school i think it's three point two one operates during the term of the dream and during the terms of the agreement within the territory basically north america our lawyer promises not to sell designs that are similar to the ones it's selling in the territory using the sherrill trademark that's a critical distinction that's the basis of the whole agreement between the parties because sheep in mind all of these designs all of them are at lor's intellectual property to start with they've copyrighted and they've registered the copyrights this is not so much a license agreement as it is almost a defacto joint venture where one party contributes to the designs the other one contributes the brand name shall we all that's three point two point one and that's not dependent on trademarks thirteen point four i'm probably getting the numbers mixed up but but the notice thirteen point four thirteen point four says that for ever not just during the term of the agreement but afterwards as well lawyer promises not to infringe trademarks that it owns and controls and of course that presumes a valid trademark as if it's an invalid trademark it's not a trademark at all those are two different provisions the district court in granting in part the second preliminary injunction based its reasoning on the first provision and said that that first provision applies even after the agreement is terminated that's i labor under what may be the misconception that you copyright designs and you trademark brands so if it says paul revere silver better be made by the paul revere silver company if it looks just like a paul revere silver pitcher but it but you market john smiths over that is not a violation of the paul revere trademark but if paul revere copyrighted the design of the picture it may depending on what the copyright is valid be a violation of paul revere's copyright one what am i mixing up you're not mixing up anything you're cable design is trademark one seems like it would be copyright let's talk about a different example to the g the grill on the front of the jeep that has actually been registered as a trademark you can go to the trademark of  it's the face of the dent just like the b m w grower rolls royce so the theory is that some design elements have become so distinctive over time through heavy advertising through sales they become invested with secondary meaning that they become so such a strong designator of source that they themselves can serve as a trademark i get it and that's where the overlap comes from whether it's distinctive enough to be a trademark that's right but there's always a but it's a source of further litigation because design marks inherently are much less we much saw stronger or weaker then word marks the u s supreme court itself has cast considerable doubt on the the the inherent ability of the design mark to even have secondary meaning that's the watermark versus ammara decision and there's there are quite a few legal commentators who think that the whole notion of the design trademark is is  nonsense another problem with them is that it's a it's a standard rule of bedrock rule of all intellectual property that you can't protect function you can only protect ornamentation decoration reduction to an idea and by definition design goes to function now coming back to this case in this case it's it's our position and i know that opposing counsel disagrees that the design mark in question which is just this little strip of cable jewelry for you're saying everybody in his brother uses the cable design because it's a pretty design and they're saying no it's for charitable design well to the to the no they're not saying that because they show sherri all instructed my client to take no more action i progress and water and it looked to me like that wasn't that clear i thought maybe they were saying it's just not worth suing these little operators that don't threaten market share because they don't have the money to pay judgments and the litigation costs exceed lawsuit i think i think the record shows and certainly the trial will show is a lot it's a lot more than that they did not want to risk they didn't want to spend the money on attorney's fees they didn't want to risk a concrete ruling against them the directive was clear don't enforce this we're not policing it it's going to be abandoned and  in the putting the fact is that as we sit here we stand here today everybody and his brother uses cable in juries in fact if you asked if you ask my wife for any anybody else who knows about jewelry the only company that's really associated with cable jeweler is david yurman other than that it's it's it's like having wheels on a car everybody has a but in any event  i'm not going to we cited the applicable law judge gettleman in our brief and if i could direct you'd only one brief i think our third brief al gore's third be fun third brief on cross  appeal is the best of the lot it simplifies the issues appropriately it distills the color is that i don't know everything i own i look at the copies and the copies are all black and white is it the yellow one cited chapter and verse on why there there is no there is no stopping here but you know very very simply i want to say i want to sum up and save a couple minutes very simply the district court's finding in the second  that the contractual prohibition on selling similar designs and keep mine these are our lord designs extended beyond the term of the contract that's a clear error of law on the face of the contract the district court expressly did not reach the trademark claims yet if you look at the preliminary injunction language it is expressly based on trademarks but with no finding of the validity of those trademarks there's a disconnect between the court's reasoning and the actual injunctive order and the reason we're here to it has hurt my client you know the sherry all one to town  unction engaged in a will we think is a fraudulent marketing campaign and my client has lost a lot of business and at the end of the day we think there is going to be quite a claim against the bond but for the time being  it's it's our position that the preliminary injunction was properly denied in the first case shouldn't have even been brought again because it was a second bite of the apple in the second case which was in and around against the deadline on  to be cleared up before we're working off of a paradigm that may not be what baksho facts the case are i have something on my mind sharper and please i wonder if i'll concentrate better on your issues if i get it off my mind so help me out they're not pictures it looks like the trademark is the word kind of like paul revere on on a silver pitcher and i don't too the contract schedule way looks like only trademarks that can't be infringed are these words and then i look at the words and it says that in section two point five and it says the trademark shall be in depicted entirely in capital letters or otherwise distinguished from accompanying text to indicate that the term is a trademark now capital letters and text and term only speak to words they don't speak to a cable design so i'm not clear on why a cable design is a mark at all when we can clear that up very easily with contract interpretation it's always best to start with the specific o general and so you can look at article one point one which defines trademarks for purposes of the contract and what it says is that schedule a is among the trademarks but then it goes on to schedule a and that you ok because it's all so that's the first part and then the second part says and all other trademarks whether registered or by common law or usage which may or may not be registered but to which marks are owned or controlled by license or was there but it's sort of hard to understand why if they want to cable designed to be a mark they wouldn't have said was the party's didn't know that the cable box was a registered mark i need this generic this argument that we're hearing is a very recent argument of convenience that happened a few weeks before a market takeover t it's good trademark well it's not just that they didn't challenge it they endorsed it they enforced the cable mark against third parties i mean the o'moore principal in chief designer for example in two thousand took a case up to the second circuit in which a lawyer was a party in which he put in affidavits which were relied upon by the second circuit making statements about how this mark is strong in this market i read that in the district judges remarks and i thought wait a minute you don't get a traditional stoffel just because you said something to her you have to gain something from having said it to the court parties are allowed to take inconsistent positions in different cases or in the same case and as long as they don't gain something from representation that there's no judicial a stop there may be some other sort but there's no judicial stoppel did they gain something from saying that the second circuit i agree with your statement of the law and  our view they did in the second circuit reversed on the issue of functionality after reviewing the record which included jackhammers affidavit endorsing the cable mark and saying that  it immediately identified the source of goods there was some discussion you had inquired about trademarks versus copyrights and i believe that there is a deliberate effort here to confuse the two concepts as well as the concept of trade dress and we devote a portion of our brief to this copyright is not a defense to trademark infringement copyright has nothing to do with trademark infringement it is not an affirmative right at all true  novel it is nevertheless the right answer to a trademark claim by steven king that your only claim to ownership of anything relating to this novel is copyright well copyright has to do source of the reason for my inquiry we don't have a decision yet from the district court on whether the cable design defies a source and so i read the contract and it looks like what the contract is talking about as a trademark is just the words not only do we have the plain language of one point one which includes in the definition of all registered marks which at the time of our clearly knew that cable was not ok ok so that clearly includes i mean it may be in artfully drafted it may raise the question why do they have a schedule that includes some of the trademarks and not others i can't answer that i don't know i think there was an effort with the way that they were were filling to the schedule that they wanted to talk about certain products with respect to word marks but that said i didn't mean that if they didn't want to include cable marks and by the way there's other trademarks too that they wanted to make a little put in the contract this cable jewelry and we've got pictures of it attached schedule be absolutely even though you created the design and you manufacture it under our name it's ours forever and you can't sell similar jewelry under your own name they could've had that yes i mean they did put a no challenge clause in here and in our view wedding combination but the definition of trademarks and one point one that was the intent of the parties because of course there had been a lot of litigation where the poor party's going to gather against third parties with respect to this mark and that was one of the reasons why there had   no challenge to us actually this agreement was one of several agreements that arose out of the settlement which is important because no challenge clause is part of the settlement under the flex foot case out of the d c circuit i want to be reading while you talk which clause what number alb do you know challenge clause is article nine point five thanks and it's fairly unambiguous good and so you could also raise a similar question why would p c i want to retain this no challenge clause in this agreement because the sherry all mark the strength of the church sherry all mark is not in it does because there's a survivorship clause which a morse counsel conveniently ignores in saying that the restrictions are stop at terminations there's an omni bus survivorship clause in this contract which carries on these restrictions passed germination and that's in thirteen point five so yes it is argued that the no challenge calls because no challenge cause is t n amount essential to a waiver i mean it's part it's it's a waiver of the right to challenge this very mark that they are challenging right now this agreement license or that would be philip cherry will shall not engage or direct any third party demand manufacturer sell any products using licensees i think that would be a wars wasting your time i meant to say thirteen point one my apologies your honor honor so there's been a lot of discussion you know can i interrupt you i think we're losing track this is a great intellectual discussion about intellectual property and it's very enjoyable and you guys are really good but we're talking about the denial of a preliminary injunction and all that goes into that and we all know what the elements of the judge's decision is and in  granting or denying a preliminary injunction and this judge that was afghanistan to a lot of the things we've been talking about he said he didn't have a record sufficient to make a decision consumer survey which is very common in these types of cases to show the likelihood of confusion he just didn't he wasn't ready to grant to pull him an injunction because he didn't think the record was sufficient isn't that  thirteen when he was facing what i refer to as the soft launch which was just the baby steps that were being taken to test the waters and australian kazakstan and by the way and on websites and facebook in the united states that's what judge  d i was looking at at the time though that factual scenario as a practical matter is moot because the records are you dropping the first appeal that we are not and money and it's a new it is and at the risk of sounding too much like a lawyer we're not and here's why because the independent basis of an injunction on the lanham act versus contract still matters it still has ramifications it has ramifications for extraterritoriality you heard a large coun talk about how there was a church oil restriction to the contract they take in the view there's restrict a territorial to the injunction in fact that was expressed today even though there is no geographical scope stated in the injunction that was granted the except you're right there he granted the injunction for you based on the contract and yet it has the contract has a territorial limit but the injunction doesn't this is an injunction too broad that shouldn't be limited to the territory if it's based on the contract the contract is not limited to it a territory there are certain provisions that are limited to territory but it's not limited to territory in fact there are several provisions in here to talk about alone or distribut defined for purposes of what the primary purpose of the contract was just for fusion with a defined territory it's it's not argued that there's a territorial restriction but you raise an important point which is that we believe that independent basis exists for granting an injunction under the lanham act and that's why we're not dropping the first appeal while the factual issues have changed and when you know what that what  saying i don't have a complete record and so the instinct might be well why don't we just remand and let them go through discovery discovery as substantially happened already but on the second injunction we provided that evidence you're saying that the first appeal is moot but that we should decide it because it still matters it strikes me that the fact that it's so matters is a good reason not to decide it along with mootness you don't want to make a decision that matters in a move case there's no case or controversy and you may get it wrong in what sense do you mean the first appeal is moot well what i mean is that the facts have been superceded ok i don't mean that all the legal moot because the extra torque we don't decide legal issues we decide cases is the case moot or is there still a case or controversy on the injunction that you saw didn't get in the first case there's still a case or controversy and it was raised a new you could view it as as as renewed even on cross appeal because on cross appeal on the second appeal you did not get an injunction in the first case against extraterritorial sales correct and then in the second case you did get an injunction based on contract based on the contract i suppose so why would we still decide the first case well now that you've got your injunction which is broader than the one you saw in the first case one of the issues has to do with extraterritoriality but why would we decided if you've got an injunction where the judge says i don't care if it's extraterritorial intra territorial sidle territorial whatever kind of territorial it is it's in joint well with you taken by him or is that the claims are also important for a different reason and perhaps a lesser reason but what what do you think that the injunction in the second case prohibits a lawyer from doing exactly what it says in the would we decide anything about the first injunction that says you can't sell it in kazakhstan and in israel if we've got a second injunction that says you can't sell anywhere well we talked about extra care it would say subject matter jurisdiction a lanham act but we didn't limit what we were seeking in the first injunction just to outside territory sales and it could be viewed as a renewal or cross appeal because we're asking injunction to be granted on the independent grant grounds of the lanham act aside from contract one of the reasons we're doing that you may ask well you've got your injunction why why would you do that and the reason is because  if at trial a little prevails in proving to a jury that hey we somehow didn't breach the contract they're going to seek and they've already said in the opening statement damages against the one point three million dollar bond well if we had a right to an injunction under both grounds and judge now it was wrong and how he interpreted stoppel doctrine which cut off his entire inquiry of whether or not injunction is allowed under the lan  act in the sec the issues on the second appeal then one title to have an injunction on both the lanham act and breach of contract in you know as against that potential series of damages it also has ramifications if we have pulled the injunction based on contract in the second case does the earlier appeal become the question that judge now appears to be confused about is what is an ins need and what the case law says is that ns at terminations means that after terminations the former license stopped from challenging the trademark licensed with respect to any facts that a rose during the term of the license doesn't mean that ok i could just terminate if i'm a licensee i could just terminate the contract and then immediately challenge grounds there are other stoppel issues we discussed the no challenge cause that we believe survives terminations we discussed judicial a stop all we've also made an argument with respect to a stop police something that hasn't been mentioned in this contract again you know a lawyer has made the argument that we we my client p c all somehow waive the right to enforce th schema marking directed toward don't go out there and force the cable mark they're talking about an e mail that happened in two thousand and two roughly ten ten plus years ago but this agreement which was signed in two thousand and ten and has a merger clause  supersedes any of the prior activity specifically says in article nine that it's over morris duty to police infringement of the trademarks and so to the extent that any activity if you don't even assume that common  law common law and contractual stoppel didn't apply so you're saying that after the two thousand and ten agreement was signed the lord didn't have to comply with two thousand two letter i'm saying that the specificity in the two thousand and ten agreement is supersedes any prior directive which we agree with your blown off the two thousand and two letter than an enforced against some small distributor without asking phillipe terrio for permission your honor what i'm saying is the parties contracted for it would be blowing off the prior letter what it would be doing is saying i now i'm drawers so without writing to fill each aerial and asking for permission a lawyer susan case turned sour and the judge says there's no trademark in the cable design aerial says you violated our express agreement in two thousand and two which continues you had no business doing so you're responsible for all the damages flowing from our twelve what the jury agreement says is not that you have a duty to go up there and third party infringers you being a lawyer or have a duty to go out and soon fell apart infringers you have a duty to police you have to keep an eye out and  and actually refers to it in the decision alone or simply just filed suit there were copyright issues there were trade dress issues and they claim rights in the keeble trademarks this is the year before the suit is filed i district of california but those facts are ongoing i have a very simple question if we would find that allure is not stopped for challenging the trademark or that the record is insufficient to reach a decision one way or the other on the stubble would that defeat or that require a reversal of the injunction that was issued in the country no your honor because the issue of trademark is completely separate from likelihood of success on the contract there's been an effort to conflate the two but what the judge found he cited to a number of provisions and he found that the contract th provisions had been breached and not all of those provisions even refer to trademarks at all but his order refers specifically of counsel pointed out the injunction is to prohibit a lawyer from  from infringing p c s trademarks and in judging irreparable harm the strength of those marks obviously is an important point so that's still in play you say discovery is going on and we're likelihood of success on the merits why ability for breach of contract with the remedy for that breach once the elements are met for an injunction the district court judge has broad and the standard on review is abuse of discretion in crafting the scope of the remedy for that injunction and the fact that the scope that dist judge shows reference is trademarks rather on remarkable things g that the contract itself is a license for trademarks is just the standard that he chose to define the scope it doesn't mean that he was making any decision with respect to the first ability of the marks nor did he it was just a natural way for him to define the behavior with respect to what is called for in the restrictions of the contract so the contract itself is a solid independent basis that has nothing to do with the separate issue of whether or not an injunction should have been issued and should still be issued on the issue of the lanham out claims and efforts to conflate the two and bring in issue of generic ness is just a way of covering up for no response an essentially breach of the breaches of the contract if you go through a brief we go through article by article where they say we will not mix the name sherry all with other names and that doesn't mean the trademark sheer nonsense the name what do they do they then run a promotional giveaway for hey come by my a little watch and what do you get in the mail you get a free sherry all bangle that says the sherry all name on it that wasn't authorized under the contract  in the contract it was it was not your honor that was activity that happened before terminations even occurred and the sell off period just because there's a sell off period it's a sell off of existing inventory we would submit that giving away jewelry is not selling off so it wouldn't even be pursuant to those rights but the sell off period doesn't give a lot of difference between giving away and sewing off whenever you have a buy one get one free sale it just means retail for five hundred fifty dollars and they were giving them away for free in so it's alludes to the power of the name in the end during the sell off here yes there are there was a soft here and there's an argument as to whether it's triggered because we challenge whether the terminations itself was valid but the law didn't acquire greater rights during the sell off period than it had during the main term of the contract just because it was in the sell off period doesn't mean that all the sudden it's it's open season and it could go out and use the sherry all name however i wanted and it could commingle and i you know we we detail the broad activity not just the promotional giveaway but for example we have decorations for customers who sure sure the issue of breach of contract to separate from trademark as we've submitted with respect to the contract itself the plain language as judge analysis ound includes table and the a stopper arguments are an absolute bar to the discussion of generic ness that even if it wasn't there were no findings well on the issue of generic this and it's not for this court to come in and make those findings in the first instance thank you for your time sir thank you ron it's very much i appreciate your patience and letting us have so much time i'm just going to make three points i'm going to try to talk fast the first one is this panel has a right to know that judge in nello issued a subsequent order which p c i was desperate to strike from this record and did so on a technicality but this court under ninth circuit precedent has the right to take you to show notice judge l issued a subsequent order it's in the docket one eighty it's excerpts of record one one one in which he said my preliminary injunction does not bar a lawyer from selling cable jewelry in general and if i can give the panel before recent one circuit cases that say you have a right to take traditional notice of that shall i shall i do so or that be a preliminary injunction and the reason is that it's being misused in the marketplace and it's causing great damage to my to my client but this this court this panel has a right to know what judge no one thinks of his own preliminary injunction second point your honor on a stop well i know we've beaten it to death but but but briefly the only surviving contract clause once this jury room was trimming was thirteen point four thirteen point one does not generally extend  everything all it says is that the rights of either party quote unquote will not be impacted by terminations that begs the question of what the rights of either party are of the right  cable by others in the marketplace and that's in the record we have p c eyes on unclean hands in misusing the preliminary injunction in the marketplace and i have to say there's a very on public policy element here the public has a strong interest in making sure that private parties don't monopolize what are generic marks and that goes beyond the interests of my client the third and last point i'd like to make and again thank you for your patience we didn't address this at all but it is a major point and that is that there was a clear error of law and an abuse of discretion i believe in judging a low finding irreparable harm  nothing the only his or his basis for finding irreparable harm was that our lawyer had quote you served close quote the distribution channels in the territory  drury he missed the point that those distribution channels belong to alow or not to p c i that's the whole reason they went into the agreement in the first place and all of these elements of damages everything p i has complained about disruption loss to reputation loss of customer lost sales gossip distribution channels all of that flows not from any breach of contract not from any trademark infringement it flows from the terminations of the parties jewelry agreement they would have had exactly the same thing had the jewelry removed been terminated a year later in two thousand and fifteen when the term was run as opposed to two thousand and fourteen when it was terminated for cause early that's not a reputable harm if it is it's irreparable harm that flows from the deep end of the business agreement not from any breach of contract and not from a trademark  infringement let me make sure i understand what some words mean usurping channels i'm trying to think concretely since they were was the american distributor for the fleet geritol i would think that would mean that a lore has a sales force and they have rolodexes basically the electronic version where they have the number of the whoever buys jewelry for fred meyers in the northwest and whoever buys jewelry for sales in the midwest and so forth where they call those people and say we've got some nice new designs plus the old ones that are selling well how many how many do you want same people is that what it means is that we're talking about your fundamentally correct that there's a little more made to context and by the way i still have a rolodex allover started business more than thirty years ago  nothing to do with cheryl i remember that our more had channels it knew some sales wrecked purchasers for charity a lot of them in the relationship between these parties began not with jewelry but with watches  which is an adjunct to henri and sherry all said to the principles of my client hey wanted to distribute my watches in the united states and my clients sent ok fine well apparently that was satisfactory we're saying there  the walk cameras so just a hypothetical for your ahmed's let's say there is no dispute between parties and the jewelry agreement runs its course until december fifteenth two thousand and fifteen and for whatever reason the parties decide you know what we really don't like each other very much we're going to end this business relationship those doors come back to al gore those designs come back to al or those contacts come back to a lower i don't remember one the rights of the party shall not be impacted by the terminations of this agreement thirteen point one it didn't say one way or the other whether charlie will retain six right to know what did not and as a matter of competition thanks for the fine argument