i think that the assertion of these other registrations which is something that the district court relied on very heavily is dressed addressed squarely in the commerce versus us i t c decision that we cited both the district court and in our cloud storage services and they can expand legally because of others already occupying the space office and we think that it's important just to to be sure that we're clear at all this the st you excuse me our excursion to use apple didn't have an intent to use and if we're going to truly sort of quiet the title out there apple didn't use in two thousand and six didn't use in two thousand and seven didn't use in two thousand and eight or two thousand and nine all it happened was in two thousand and nine apple begin filing a large amount of trademark and service mark up occasions claiming a whole however are trademark attorney testified that was because they wanted to protect the quote unquote ecosystem of products and services as well that would suggest maybe that they have to have  a likelihood of confusion when apple is using for its tablet and or excuses for its cloud stored services our position is that the marketplace the consumers will know we're not out we're not  offering apple branded products or services for apple and and we believe that the consuming public will recognize that apple is using the i pad for a device and it uses something i cloud or other marks for other products and services such as cloud storage so are we square the circle your honor by saying that the only work for fusion will happen will be with call short services which apple is now offering as a under the i pad brand thank you that can create a question of fact and these we presented to the jury and we think that's exactly the case here once you look at this case from the proper perspective the problem for not just record is rather than looking at the state of the  where what we believe all that show only that the consumers were d confused as to who had a prior rights and obviously the survey didn't test that the survey just said hey who do you think these are and some of the results were of facts should be presented to a jury properly instructed on the law they represent they cross section of the modern consumer base and that then make a decision look at this look at the survey evidence of course but look at all the other relevant undisputed facts show that arc fees i pad for cloud storage services causes confusion as the district court properly found rd wife liability was established on summary judgment the district court did not abuse its discretion in issuing an injunction keeping i pad or xti a safe distance from the margin to stop it from using i pad or something colored with similar to it whether it was with i and here i just want to make one brief comment directed to a question to the court the court asked mr key what the significance is that the intent to use to the summary judgment finding a liability and the the answer to that question because you're not doing on the still pending applications that are the subject of the bona fide intent to use challenge we're suing on a host because it used it and connection with the i pad will be web site and it seems to argue that because of that apple can't force against it because it's the prior user citing that i was wrong is never a challenge that it lacks enduring meaning its way to those arguments more ok we're not doing i pad we're also suing on our i pod registrations and the district court also found those twenty seven percent of the consumers from looking at that i passed today dot com our web site and thinking that it came from apple i know that mr t said that well consumers the marketplace knows they're not x but that with the evidence indicated and they certainly did not put in a consumer survey indicating that but going back to what i was saying about the the  that as i think the court intimidator radical change there and a look at the website from two thousand and seven as we explain  because we all know that brother product then we control the whole at those system if you will of everything is done or as you know we may or may not have evidence  track i think that there's there's two things that are being possibly conflated here the strength of the market factor just talks about how strong the market is because th was well settled that a stronger mark like the coca cola gets a broader scope of production than a weaker mark that may not have heard of the material the question that your honor is going to more relates to the proximity of the services factor with well how similar do they have to be and apple certainly does not have you know rights to everything that might say i pad or a that they are interrelated enough to cause confusion if someone actually was using i pad two or i don't know a drum set or or an apartment building here's my cat or something like that maybe position is actually very limited your honor again we're not talking about our intent we're talking about actual rights that we have that began that the pending registrations are irrelevant to claim which is based on existing registration rights and look and you look at the seven factors and you decide the nine factors whether there is a likelihood of confusion and their burden at undersell attacks is the come forward with evidence indicating that there would be a likelihood of confusion and to be clear we don't even have to do is synergistic in the case when all that factors you know your honor space would necessarily fit this but we're only suing over this one that and also to be clear i think it's the last that the district court also noted that artificially when it began using i p initially in two thousand and seven actually in that case it was already aware of i pod it could have looked up had it done his trademark search which it did not do that that there was a kid who already had a registration forums you should not pick i pad this is clear trademark infringement this is a real disaster but they did it anyway in our view and in intent not to be the st comer but to take advantage of that first comer and this is not an entity that deserves that and that's why when you get to the issue of the scope of the of the injunction it's more than proper that they should be enjoying from least as applied to cloud storage sources was merely descriptive at the time that it was adopted and under the converse assumption what that means aren't you gotta stop and look and say ok when did secondary meaning attach percent number yeah you know it's over twice circuit's threshold of why doesn't support the district or its terminations regarding actual confusion you've just not said anything on that and she's saying it's very important so i kind of like to hear your response on your ship well not only in the tell it all because it's as i said before st of all the recognition as for a they have to prove that it can vary by meaning or they had recognition that in them or they got transferred to cloud stored services and they have to prove when it happened and they didn't do that so far as far as we're concerned this is nothing more than an extension of saying we have priority of