the district court's preliminary injunction should be vacated because there is no evidence of irreparable harm and no likelihood of success on the merits either one is an independent grounds for vacating the p was required to make a clear evidentiary showing of irreparable harm but all it had was speculation about remote possibilities no confusion no immediate risk to its reputation no immediate threat the customers franchisees or sales would be nothing that satisfied this court's actual imminent standard for irreparable harm the district court itself made a factual finding uncontested on appeal that quote the lack of any indication of confusion particularly given the broad reach of nike's campaign bus far calls its existence into months if not enjoyed in addition to other public panic as he can i ask you a about that you talked about the time line and i'm interested and we'll get to the merits of this eventually your verdict started down that road but i'm interested in the argument from your colleague on the other side that because nike only intended to have this campaign last for a finite amount of time and that time has come and gone that essentially this plan or injunction is is moot and really what you all should be fussing about in front of the district court is whether the fact you are interested in litigating the notion of a permanent injunction and we're damages but for our purposes this preliminary injunction issue is not something that we need to your honor the appeal is not moot for two independent reasons first the p i prohibits more speech then just b s each campaign and more speech then just the sport changes everything they will let me stop you there so introspective that the why isn't that an issue to be litigated on the question of whether or not a permanent injunction should be should be entered your honor the reason why it's not merely an issue that can be punted to further district court proceedings is because the preliminary injunction itself is drawn more broadly to any use with certain exceptions that is confusingly similar to understand that but but but by definition it's a per luminary injunctions so doesn't something else need to happen either it's the solve either it's converted into a permanent injunction there's a trial  but i just don't understand why we're litigating something that your own client has suggested the focus of which was this campaign which has ended yet it is correct that both parties agree that the focus of the preliminary injunction the campaign that has ended but there are two reasons why this life controversy spans more broadly st the fact that the preliminary injunction was not merely limited to the campaign and therefore because it ribot's any use confusingly similar to running changes everything or change everything nike is still subject to this speech restriction where if night you were to have some other yes your honor the preliminary injunction one way or the other will not be in place forever however it remains in place right now and is restricting make a speech right now and potentially imposing a chilling and the supreme court in the group oh the mexicano case made clear that in circumstances like these the ability to recover on the preliminary injunction bond is something that by itself keeps the controversy alive and injunction dispute to the parties was the support changes everything campaign and that's over there is still alive controversy for those reasons but council we can't resolve he would not have had an opportunity for appellant you dish will review of that opinion however your honor it is not clear that if the p r i were dissolved solely on the basis of move miss that night he would then have an opportunity to recover partial reimbursement for the premature arrest of its or it changes everything campaign because unlike in the university of texas case where the money that secure the injunction bond was the same amount of money that was at issue on the merits the one million dollars p i bond that he'd hosted is securing nike against the injury that it already suffered from the premature terminations of the s c each campaign that amount is not directly in dispute on the merits so it is not clear under grupo domestic condo and the university of texas case that this cour honor back at the district court in this scenario nike would argue that it should recover on the p r bond but what we would be missing in that scenario is overruling from this core that the p r i was wrong done and saying that the p i was dissolved solely on the grounds of yes therefore there hasn't been any determination that the p i was wrongfully enter and the district court may despite whatever arguments about the propriety of such an order in light of the supreme court precedent if this court were to issue a decision that dissolve the p i in its entirety and vacated the of levels right because you could well lose on the merits and lose money and yet have been totally correct about it reparable arm arguments that you're making because those are limited to relief that suggested would solve the problem that you god it would have the additional problem that where you had the bollen terry cessation of an advertising campaign right which is what nike did right injunction issues like they don't just stop doing it they're ordered to stop doing right and that we have this entire doctrine of the voluntary cessation which requires that it be absolutely clear that you're never going to use any of those things again  any of the the trademarks in order for that to rigorous mood i mean it would be an odd world that your seating to the district court's order that you do something moves the v ability to appeal the district court's order that you not do it i mean that that to mean the whole premise here of movie strikes me is is an odd one because you're in a situation where u s ceded to the district as order that we see laid out in the host of supreme court yes your honor we agree and that is why nighties position is that this appeal is not moot and there remains a live controversy my response to the questions from your colleagues were premised on the scenario where the court decides to dissolve the p i based on ness and outlining what conditions would need to be in in that decision for that decisions or possibly remedy the concerns that nike has about having the p i in the opinion remain in place without the opportunity for a media a has no plan to use sport changes everything in the future and has told this court it has no meaningful remedy from this court even if it won a victory on appeal that would be a hollow victory because it chose to the injunction beyond doesn't say this appeal for mootness because nike can recover on the bond if it prevails in the trial court and cameron ish has explained  that in a case such as this any issue preserved by an injunction bond can't be resolved on appeal and has to be resolved in a trial on the merits nike can't know if it will recover on the injunction bond until the propriety of its case on whether it wins the merits because that's what determines recovery on the injunction behind and nike has by declaring that it is ceasing that is ceased sport changes everything campaign and intends never to use it again and has no remedy here nike then is logically and under the law required to go back to the trial court where the case is currently stayed  to enter the preliminary injunction the issuing group of mexico had nothing to do with the merits this was a case on where an injunction had been entered to preserve assets and so the issue in that case the ultimate merits issue is does is money but the question of that was challenged in the preliminary injunction was which was a question in a group of mexicano would still have to be decided at trial nike has said the irreparable harm issue is another argument why this case is not  t but that issue goes back to the trial court for a determination when if this case does if this court excuse me does what it did in sense any for example  and dismisses an appeal as moot and remain answer to the trial court then nike is free to ask the trial court to decide the injunction and then the trial court can make a merits determination on whether nike's entitled to recover on the bond but the two questions are separate the point as i understood it was that the questions can be separated and let's just injunction right with mace you may develop new evidence that you didn't present before that allows you to prevail but that's still fundamentally different from whether the glimmering juncture was properly is and whether ni group of mexicano decision because there the court explains that if the party who is in the position of fleet feet here prevails at trial then  even if it turned out that there wasn't adequate evidence of irreparable harm at the time that would be harmless error because ultimately when harm to them so that may have been through there but it doesn't seem as true here but nike voluntarily ceased this that's not typically what we call voluntary cessation right like we talk about voluntary says asian when they stop doing the running jane does everything that was volunteer right but the rest of it is sport changes everything is only after there is an injuncti order from a federal judge saying stop that's not voluntary is it well there's no reason that nike couldn't resist the campaign there that's their choice not to resume the campaign  became today without balloting of our water right and that's why they need that's why the trial court rather than this court should resolve that issue because they have chosen to stop the campaign and that requires this case to go back to the trial court and they have that remedy in the trial court is that true for any woman do that theory seems to swallow the rule we would never have an appeal of lorraine junction unless somebody is under contempt of court for violating the federal  after nike has said it can have no meaningful remedy from this court that seems like a concession that nike needs to go back to the trial court for its remedy and the trial court would it's there that the issue of whether the injunction should have been granted would be decided nike could try this case prevail on the merits and and get the the bond back presumably but recover on the bond i should have said but by declaring that it had no meaningful remedy from this court that deprives this court and the fact that there is no case or controversy that should just private this court of subject matter jurisdiction so it's not that nike has no forum for resolving these disputes it's that the the proper forum is the trial court unless unless there are other questions on this go ahead to the merits there are two issues that recur throughout this appeal the clear error standard of review and reverse confusion and both call for affirming the trial court the findings that nike challenges on likelihood of confusion and fair use and irreparable harm or refute for clear error and the trial court made those findings after considering more than a one thousand pages of evidence three hours of argument from counsel it issued a carefully worded fifty one dollars page opinion and its findings and that opinion are correct but they need only be plausible for this court to affirm them that kind of court's findings easily satisfy this standard now the trial court correctly recognized this is a reverse confusion case and there's nothing novel about reverse confusion all ten federal circuits that have considered it have adopted it trial courts within this circuit have applied it and the restatement of unfair competition has endorsed it and the trial court recognized that this is this case has all the earmarks of reverse confusion and properly judged the case under review verse confusion standards rather than forward confusion standards nike contends that the trial court's errors are that apply these reversed confusion standards in fact what nike wants is the application of forward confusion standards that don't fit this case and the court should reject that argument unlikelihood of confusion touch on that just briefly three of the eight factors the trial that the trial court considered nike is assigned error to similarity the marks intent and actual confusion on similarity of the marks the trial court used this court standard in pitts pizzeria and it measures similarity by the distinctive fortune of the mark so in that case pizzeria no and taco no were considered confusingly similar because the distinctive part you know was identical you can't just switch out taco for pizza for pizzeria that doesn't make them dissimilar here the trial court found that running changes everything and sport changes everything were confusingly similar for the same reason you can't just say about sport for running and make the marks dissimilar and the common element changes everything is the entire mark for fleet feet's change everything nike and this is one of those cases where the reverse confusion vs forward confusion standard comes into play nike argues that using its house mar s the not the word nike in the swoosh negate similarity butting in reverse confusion cases the vast majority of courts have held that it actually exacerbate similar confusion because it reinforces the association of both parties marks with the junior user so the trial court correctly found that this factor ways to sidedly in favor of fleet feet on the intent factor nike faulted the trial court for failing to identify one iota of evidence that nike intended to can excuse me confuse consumers but intent to confuse is the forward confusion standard for reverse confusion courts look at whether the junior user knew about the senior users mark the trial court found that nike did know when it adopted sport changes everything and cited compelling evidence and not just cited a few of the pieces of evidence that nike and fleet feet had a long standing relationship as competitors and business partners and the nike brand manager worked from fleet feet's headquarters in  of running changes everything covered the all right outside his office door that appears at page three hundred of the joint appendix nike fault at the trial court for making an inference that it ran us search for other uses of similar marks which would have revealed fleet feet marks it was reasonable to infer that a company as sophisticated as nike as experienced in trademark litigation i nike would follow this standard practice before launching a multi million dollar ad campaign but if there were any room for doubt about that inference nike eliminated it when it argued in its fair use defense and this is that page thirty two of its initial brief that it selected sport changes everything in light of the widespread use of similar terms how could nike have known about this widespread use of similar terms without searching for them and how could a search not have revealed running which you know you have it didn't seem right and you well how eight term it's in common everyday know trademark searches do know whether it's a mark or not nike is just saying something changes everything is a common binocular term not short term right the same to me totally different ideas it would be standard practice to run a trademark search and then when you know that search down to the uses that are in your same field because those are the ones that matter if you lose your point was your point is a different one your point is they conceded that they did something because they said something changes everything is common vernacular but i agree with them on that but i don't see how that goes to whether they get a trademark that to say you acted in good faith because of the widespread use of similar terms that there's certainly an implication implication that you searched to see to determine that you can have a hunch about something but would you lot would you spend would you bet sixteen million dollars sophisticated as nike that fails to conduct a search you know necessarily needs to accept the consequences of that failure out well it's certainly should accept the consequences of that failure and the argument could be well it just doesn't want to know it's going to go forward and do what it wants to do and blind itself to the reality that there might there might be a it is problematic and it goes back to the way the intent factor which also the intent factor has is whether a company knew or recklessly disregarded and if the rules were that you could just recklessly disregard you know marks that are confusingly similar to the one you want  you should pay you should pay a toll for that i mean that would be a terrible rule is what i'm saying classic question about this issue of actual confusion so isn't that doesn't that sort of cut against a finding of a likelihood of confusion your honor it does not it has to be if st of all the trial court ruled that this factor favored nike in its analysis but trial courts don't require actual confusion to prove likelihood of confusion and there's a good reason for that it is that  like evidence of actual confusion is incredibly hard to find and it's judged over the length of time that it's been out there so this campaign has been out there for only a few months no discovery it's completely unremarkable that the confusion wouldn't have surfaced by this time and that's why courts don't require actual confusion and to do so would mean that you would have to be harmed there be concrete evidence of your harm before you even seek relief or it can seek relief or it i see that i am past my time i'd like to if the court would indulge me just point out a few pages in the joint appendix that i'd like the court to look at it's a two thousand plus page appendix and  these pages were i think illustrate the use of sport changes everything is a mark which is a critical issue may i just cite these pages there's going to be the court and thirty three which shows nike sponsored athletes using running changes everything late the exact mark to invite consumers to visit them at nike's online store and to give a full picture when he complained of that nike changed sport running to sport but that just shows how similar these marks actually are thank you for letting me cite those pages honors the district court's irreparable harm and reverse confusion rulings fall apart when viewed through the prism of the particular theory of reverse confusion that the district court incorrectly embraced here this wasn't the more typical type of reverse confusing case where one might encounter nike's marks and then these products and think that leaf its products come from they'd rather it was something very different what the district court said  where upon seeing changed everything in writing changes everything the district court said consumers may assume that world wonder if the controls your honour's that is not a reasonable assumption and certainly not one that can support the preliminary injunction here what the district court is supposing is that someone because they saw the nike sport changes everything campaign would then walk into a flee see all of these different brands some of his fiercest competitors in the running space see under armor new balance a six and more of the twenty five brand partners that and it's irreparable harm ruling and is one of the reasons why those rulings should be vacated the remaining time in the campaign is also very significant here by the time of the preliminary injunction hearing the campaign had been underway for four months and there were three months while the district court itself found that ninety's use of the sport changes everything advertising slogan was widespread and that because of and because of nike's pervasive presence online and in social media the lack of any indication of confusion causes existence into question so the district court was basically saying even though this may only be four months those four months are white dog years here defeat in the extent of ninety's use and then you compare that to the but only three months remain in the campaign at that time and this cour decision in direct israel requires that before a p i's enter something that this court called an extraordinary and far reaching remedy it should only be issued in limited circumstances where it's clearly appropriate in the st four months of the campaign with a commercial at the major league baseball all star game on t v a commercial at the espy awards on national t v over eighteen million  district court itself found other expensive uses online and on large public billboards if those four months had not produced any indication of confusion we're using the district courts own findings here that's why we're not concerned if this court is the clear or standard because many of the district courts factual findings favor a night the district court just drew the wrong legal inferences from those findings if that were the case over the  st four months of the campaign and then fleet feet could have produced a single consumer a single franchisee a single employee a single anyone who was confused and also could not produce a declaration from any one of its one hundred and fifty three franchisees or based on consumers coming to the doors of any of its one hundred and eighty two dollars stores total or c game fleet feet on the entire sea of potential evidence and exposure to ninety's campaign the the fact that it was an able to produce any evidence of actual and imminent irreparable preliminary injunction by itself renders the district court's irreparable harm ruling legally erroneous and your honor as i see it by my time's expired may please address two more points briefly from this court's case law that the district court did not follow our from the care st decision of this court age to sixty seven that this court said although proof of actual confusion is not necessary to show a likelihood of confusion the absence of any evidence of actual confusion over a substantial period of time creates a strong inference but there is no the hood of confusion and four months of an extensive campaign relative to the seven months seasonal duration it is in these intent required for both forward and reverse confusion has to be the intent to confused consumers because that is the only harm against which parts cuts but does not create two different sets of standards for forward and reverse confusion and therefore the same standards that this court applies in a forward confusing haze should also apply to reverse confusion otherwise it would transform reverse confusion into new species of trademark law where week marks would be giving special protection and preferential rules precisely because they are weak this year honors were turned trademark law on its head therefore your honors the court should rule that the district court heard either as a matter of law or in clearly erroneous ultimate findings of fact vacate the preliminary injunction