advertised marketed and sold multifunction pocket knives with the red handles under its own royal crest trademark and its own royal crest design with the knowledge that one there were multiple purveyors of multifunction pocket knives selling them with red handles to the victorian locks was aware of b n f for sale of red handled multifunction pocket knives because they  displayed at the same trade shows they were selling for the same channels of trade they were advertising in the same places they were marketing online the same online marketers and especially since one thousand nine the seven knowing of this court's decision in the four sugar yes arrow trading case the one referred to was fortunate to and which this court specifically held that a purveyor of multifunction pocket knives could not be barred from selling them with red handles even if you call them swiss army knife and that red handles worse that it be functional despite all of these facts the district court held that been was a willful infringer ordered trouble profits and attorney's fees that ruling was in error and i have stressed the damages profits word first not because we think that the injunction was proper but because frankly the damages the word here is an economic deaf sentence to both b n f and to john meyer personally who was sixteen years old and a high school student w f started selling red handled multifunction pocketknives the district court and sorry in order to a word profits you must prove willful deception the district court based  i'm sorry the victorian arts was only objecting to the use of the term swiss army knife even though it had and attached to its letters copies of the n f c catalog ads that show red handles and the royal crest design with the only objection was the swiss army knives beer stuck using swiss army knife just because it wasn't worth fighting several years later arrow trading company decided fight that issue and this court decided that victoria x s contention that the term swiss army knife means something made in switzerland has no basis in law in on that issue it had a right to do that but what it clearly understood was that the only problem and what it was doing in the minds of victoria knox was the use of the term seuss army knife and in one nine hundred eighty seven they stopped using it if you look at the catalogs and all of those catalogs from from each year are part of the record on appeal if you look at the catalogs in one thousand nine hundred seven the earliest catalogs referred to in life was royal never is the term swiss army knife uses royal crest and royal crest in large letters look at their packaging they have a blister pack which you can find in the appendix at eight hundred seventy four this is a copy of that blister pack also saying royal crest is also occasionally use a black box which you can see or eight a anything eighty that's an example of this black box even the silver box which eighty seven letter the argument was victoria knox must have known about her use because we were at the same trade show the reasons you saw all those reasons it's ok but they were saying  the that they are in the in the appendix so everybody was asking everybody was asking for for documents that would have included it and nobody produced nobody produced it and i mean remember we are we are talking about a letter from a long time ago ok and i'm not saying that victoria knox you know found that letter in the world fully refused to produce it ok but they may know it is possible that they didn't have it anymore ok but they can't my client had it if you will by accident what they did was they searched all the records where they keep their legal documents that letter should have been there the only reason they found it had something nothing to do with the document requests in the trademark case it had to do with the next appeal that you're going to have to deal with which deals with the disqualification motion when william myer was saying how long have i been using these attorneys and he went down and he looked at jack ames old general correspondence files from which all the legal documents should have been fold and he said oh my god look what i found here ok he found this letter yeah and i think they they used reasonable diligence to find that letter it only was found by accident as a result of something not related you know immediately to the document f was aware of saying that you cannot for a third party prevail even more has been found guilty of unfair competition from using red handles you have to be able to use red handles because that's what multifunction pocket knives look like they have red handles they have multiple tools and an awful lot of them have some sort of shield design so i think those the third party uses the victorian knowledge and now we know victorian yes we also have a picture which you can find on the sea with shoes ace six hundred eighty three the way these books workers who lay out all of your products that's what happens you trade shows you display your items and you look around you see what your competitors are doing yes plus they sell and market in the same places so it was a reasonable conclusion that they let this argument pass without dealing with the issue of the injunction itself ok now i believe because of the latches argument that any injunction here is improper but even even to find that some sort of injunction is improper the injunction here went way beyond all that's reasonable first of all it bars this effect every bars  from selling anyone to function pocketknives because part of the supposed to trade dress of a victorian ox is a multiple implements to fold into the knife excuse me that is what a multifunction pocket knife is by definition second it's not limited to multifunction parking lines even though the trademark registration is strictly for multi red handles and multifunction pocket knives it's all products sells various other cutlery products kitchen utensils knife sets you know that they use in the kitchen some of which have red handles that would many of which are sold under the royal crest name therefore the also there is a restriction that bars the defendants for making any sale assignment transfer of property in which they have interest is no restriction with no limitation for sales in the ordinary course of business and for lease a car would be a violation of the injunction as written that it's nonsense well all i know is we made a motion to the district court to modify that part of the infringement consumer deception and defendants gamesmanship throughout the conduct of this case they void their discovery obligations relied on precluded dark moments and proffered new arguments and issues an appeal should not even be dealing with and it's not simply a case about the color red it's a case concerning trademarks owned by the swiss company victorian r t g involving the iconic red handled swiss army knife the victorian ex created over one hundred years ago and with what the swiss government wanted for nice for its army correct correct that's what that's what it was back in history we fast forward  generically i do it doesn't people who manufacture when anybody goes to a shop would call a swiss army knife i would hope not but i believe that at some point in time there were but we've been policing those marks knives over the years and how many years for it dating back to the certainly for since we have evidence going back to the seventy's you these people songs least thirty years letters and had dealt with these letters wasn't victorious was for sure as a distributor we had no control over them no privy with them at all and so we shouldn't be hampered by when our distributor may have done and we had no control or zero input into that that's correct b n f is a seller of two thousand items not just these knives this is the two percent of their market the area he referenced a sixteen eighty two which is a picture of their display which is played a lot more anything you can see the knife in this picture when you look at it in color so i think that that that's it that's a that's a red herring shall i say using the color red it's a red herring in this whole case and it has been from the day one of this decision of this case we of course we we had we advertised they must of advertising various catalogs and magazines but we never heard of these people we didn't know that b f they kept under the radar they  basically the way they we worked was in using drop shipments and you didn't know who they sold to so they would sell to retailers this only unit to people that so on the internet you have no idea who b n f his and we did not learn about be throwing a lot of things that clearly shouldn't even be reviewed by this court their new issues particularly know their position below was they should have known not that we knew issue and so they basically in essence conceded they did concede that our first knowledge was in two thousand and thirteen argument the court concluded that the defense was barred by unclean hands they looked at this pattern it's not just one isolated event and they haven't challenge it in charge one of these facts below the challenge it we it seems to me you have to rely on the idea that what ever it is they were doing they were trying to deceive members of the public into believing that the multifunction pocket knives they were selling had had its origin in  victoria and they were doing that they use the word army in association with the sales you just to get it that somebody just said that the the swiss army created these things on hundred years ago why would you going it's was mean victorian acts created the knives to supply the swiss army because the swiss government required to suppliers i know you've merged but you only emerge rece right probably to put all these rights together right we acquired distinctiveness shall we say i'm not going talk of the word swiss army required to stick to this in the terms of the of the look of the tree dress of the knife and acquired a since the seventy's and since one thousand forty five when the army officers brought them over and started calling them swiss army the swiss army did not call them so sorry the us officers started calling it became register became a trademark over time and we had  had a couple manufacturers of these records it sounds like they were named as it were by a group of people have nothing to do with your company and and their record and you can't you you  you that it was two sources it was two sources that now it's not two sources and also we can have dual ownership which we did with respect to the swiss army trademark ultimately after your honest decision yes you have a registered mark they could get as close as they were john meyer actually made that decision and i'll use army thinking to get as close as possible to use of armor john meyer did that certainly within the last since he was the president in two thousand if has again adopted the name swiss army we that's how we it's another way we we found them when they were sold in customs found them and then we looked on the internet and they were being used to swiss seven that was referred to mr lesser of the royal crest barks has on it a four piece army knife give certain women in case so as to evoke victorian arches swiss army name they encourage induced others to utilize a very long time and they point to a second circuit opinion that suggests that color it's hard to claim protection for the red handle on these knives could be read that way different parties long time ago that it's there could you marshal the the evidence that you relied on for the district court to support its determination that there was here yes there was element for element copying element element copying element but for element copying of the of the look of the other knife how is that different than any other kind of knock off my costs are permissible when it is read not of  entitled to i mean you have a patent on putting different blades in a single if it's not the knife you see it's not the knife the trademark is is the scales the red scales with curved edges the it's the red handles that are on it they are the the element is the judge defined it as two elongated all shaped red scales with curved edges that's the registered mark and that has secondary meaning it's acquired secondary meaning it doesn't every pocket knife have to oval curved edges  housing for the eyes that are inside it not everyone ob gyn everyone and not everyone has it in red and not everyone has it in red we get to read ok before we get to read i'm not sure i know how you would design a knife in multi function ife without having a housing that contains it and if it's plastic which is would seem to be the cheapest we've doing it then and having it over doesn't really strike me as as anything that somebody can knock off but the letterman knife company doesn't use it and they they have a multi function knife but maybe they're not knocking it off to the extent that that be and if it is but why can't they knock off your knife because it's protectable by as a trademark it's been utilized for a number of years it's gained secondary meaning over the years it's been registered as a presumption of  registration we've also of it well i would say in our instance we believe that we have a pin number around the registration that enables us to concede that they may use a different ship not use ruby they may not be use ruby red but isn't there something useful about having the red not if you're going to take it into the woods and have it in your pocket in your ki other colors are sufficient you don't need to deplete the whole world to do it with a bread knife is as been the traditional life going back many many years it has gained secondary meaning in his army and in terms of time when you victoria today but the real number the same source it's the same sort comes from the same source that's that's the point  instructions without the advice of counsel after intervention in seizure by the customs defendants their manufacturers and retailers which i've been mentioning have all used the mark swiss army in connection with the sales drummer chose to sell the knives under the name army because as testimony because it was as close as he thought he could go in the he did want to hit swiss so he just used army definitive engaged in this pattern of copying other victorian arts products repeated efforts to apprise the judge said united states isn't a consumer deception i mean there's there's a bit of consumer deception there's a lower quality knives and i think that you know there's a there's a serious problem other things are there serial inference serial infringers there are we've been able to locate just  trap them into some kind of admission against interest which i think i can it's the it's the as is my apartment's aids it's the gestalt it's the instead it's the entire view of their pattern of conduct it is and it's only on appeal know the statement that we encourage b n f encouraged and induced its retailers to use army life there is zero evidence of that in the record if finding we didn't have proof actually last we found a set of the letters but we certainly made a major argument about all the reasons why they they must have known so we certainly didn't concede that you know for sure i went for sure sent that letter in there were different companies that yes in fact they sued each other and of course vs say i victoria knox swiss army inc is one of the parties to this action and is fortunate only one of those cases was there any admission of liability and any payment of any anything other than nominal damages look when you sell two thousand products and you've been around for sixty five because they infringed a gucci trademark the good she obviously didn't consider infringement because they never sent a cease and desist letter and they never they never sued they're also asserting various infringement claims about things that y been around right here and one less thing ok they talk about how red handles have acquired stink in this well in fact their application to register red handles as a trademark was refused to get a final refusal from the piece here and six months later they asked for reconsideration and it was in that reconsideration application that they made the false statement that is a huge part of the cancellation proceeding where they said that red handles have been judicially recognized as having acquired secondary meaning citing the lower court case in fortune or two with the statement that it was affirmed which it was but what you wouldn't knew from that was that in fact the district court elected not withstanding a statement in its decision not to enjoy the use of red handles it was cancellation which was dismissed by the district court is part of the appeal here and so that issue is in front of you and at the very least there's an issue of fact there that was not summary judgment should dismiss the cancellation