vs was actually when you're when you're ready it please the court we're here for the second time to determine whether east i will plastics is entitle to attorney's fees and trademark litigation against pie this court previously reversed the five hundred eighty five thousand dollars award from the district court under the lanham act on the basis that it was not a prevailing party under that statute the court issued a very specific remain and the court said this court said that there were two facts that weren't answered by the district court prior ruling first whether or not and it related to ownership of the trademark first whether or not pai was a joint owner was a licensee and then if a licensee t extent of that license the court directed the district court to consider whether the answer to those questions would entitle two attorneys peace under state law based on ownership of the trademark registered trademark to the point that the lack standing to challenge that registration and this court reversed the district court's cancellation pi's trademarks against that backdrop the  its prior five hundred eighty five thousand dollars award under the landmark attempts to hold on to that five hundred eighty five thousand dollars award which reminds me a little bit of a saying a judge i know uses i'm greedy there must be an underlying statute and the only statute here is a lanham act which this court has already said does not support a piece to e ip unless the court has issues to ask questions for me related to the five hundred eighty five thousand the supreme court in alyeska pipeline noted this exception but in doing so they also noted it was important to apply the stay the public policy of the state when considering an award under state law faith as well right it in there is also and or in some of the case law that's your position that the connivance is really the premier guidance that we have under iowa law exactly and i think that i was supreme court made that clear is indeed very difficult to to reach under iowa law in one of the district court made some findings in the the i guess the actions of the attorney and  the the client in terms of connivance to try to sort of do i don't know tag team to try to avoid any kind of liability for what they were doing is there anything in the record to base that or their basic pieces of evidence in the record that would support that inference there really is not the only thing that he was able to point to was the fact that a chicago attorney email copy of the application where he had filled out the declaration to pie but that e mail came after the application had already been filed if you're going to have connivance that's going to happen ahead of time the district court also trying to time  registration in the patent and trademark office to itself and so when the evidence there is evidence that pi actually did look in the trademark office to see whether or not there was a registered trademark and all they saw was the that the phillips mark trademark and then related to that these two parties coexisted for a good ten years they attended the same trade shows they very clearly knew about each other's marks but  told by that it thought that owned the mark and pile was subject only to a license that didn't pile was not even aware that he ip had an asset purchase agreement or specifically the li mean this seems it seems i don't maybe the way i read the district court it seems that perhaps that to the extent that the district court felt the i was pulling one over on the patent trade office that that could be a fact that might justify attorney fees and i think that that brings us back to the purpose of the remained which was to determine whether the finding of ownership of the trademark what's a part attorney's fees under state law and under trademark law in general a registered trademark has nothing to do with ownership ownership in this case was based on the asset purchase agreement but also on use you can it get you can ask for a registered trademark from the patent office but if you don't use that trademark then you don't own it so the registration just has nothing to do with ownership but i think that does bring back to a good point the district court in its first order on remand really made clear that the it's concern was that party shouldn't be able to benefit from the permits brought on the arm on the on the patent office as opposed to anything related to the court said willing to throw his own sons under the bus did support common law fees but that's the point is that that separate relationship existed and here that just doesn't exist subsequent cases including  show that fraud itself just isn't enough to support common lobbies under iowa law part of the connivance finding related to the timing of the cease and desist letters and i think the district court found th district court's finding at connivance he said you know they they work what they can i brought their attorneys to get a registered trademark they laid in wait for five years for it to become an contestable and then they started sending these cease and desist letters they received the first even negotiated with e r p for nearly a year trying to decide of one should buy out the other and at the end of that when neither one of them decided they wanted to buy the other one that's when  standing to challenge the registration and hawken bert the defendant disregarded and ignored district court orders to stop but it continued sending its marketing material to the pla back if you could because it seems like that no one is disputing the actual ownership it's just the scope of the license back exactly and so the licenses when purchased the trademark along with the business from ken tech can tech reserved for itself an exclusive perpetual absolute license to use it for injection molde products because it told we're also we're going out of business we're selling our separate wind that's out of our tennessee office or kentucky office to someone else and we want to be able to let them use the packs to mark and that was the whole reason they even had the license agreement to begin with and so the district court erred in first it found that there was an implied license but that actually wasn't expressed license but that license was attached to the asset purchase it was very clear what was being what tech with help for itself and what that license covered what might be inferred is what can tech gave to pi but all of the actions of all the parties in this case including can talk and when they entered into the asset purchase agreement and including good morning your honour's in there please the court my name is glenn johnson i represent east i'm a plastics in this case first of all before i get into my argument me address a couple questions that were raised by this court number one when the molds were purchased i they bought molds for two products and two products only chicken coops and egg baskets the testimony of robert johnson made that crystal clear in the record right there were no molds that were purchased and in fact robert johnson testified that the egg flat mold that ultimately was introduced under the paxton brand by p r i is one they copied from a competitor  enterprises and introduced it into the marketplace so what is your position you're starting with the second the second issue of the license back what is your position on the scope of that license back of am i correct that everybody agrees th ownership but it's just the scope of that license back to to well first of all you're wrong on the ownership issue very briefly p r t contested hotly the issue of ownership all the way through trial of this particular case they contested it into specific ways number one that my client east i will plastics held no ownerships rights under the asset purchase agreement and therefore under their if you if one would read their registrations and the scope of the goods covered by their registration he ip would have been infringing now they dropped right before trial the counter claims of infringement against us for tactical reasons but the essence of their position all the way through trial was that was that the ip held no ownership rights whatsoever in this trademark right secondly they claim that they held ownership rights in this trademark all the way through trial they had two bases for that essentially number one is that they used the mark in commerce and they solidify the use of the mark in commerce by registrations lawfully obtained from united states patent trademark office so they claim that these registrations were lawful they maintain that position all the way through trial now part of that claim of lawfulness was that they enjoyed the legal presumption of benefit of vote literally of their ownership of the trademarks of the right of exclusive exclusivity of the right to trademarks and the bottom line of this is that they doggedly maintain this position all the way through trial they lost the issue right so now they're here saying well we're license e we should be entitled to use this to the full breadth and extent that we the under the license that was granted back to cantor the essence of their position is that the they now should be allowed denied that that license was a pleasurable to so it's your position that they did that they're not a licensee what is it what is your position on that second issue judge our position is  bases for trademarks the consuming public is a driving force with regard to trademarks and the essence of trademark law is that the consuming public should be protected from confusion right in this particular case confusion was rampant and that was before the judge so what he did out the the  court equitable authority and power to fashion a remedy that addressed consumer confusion and that are fair to all for example in the in the case before the judge under section eleven seventeen the judge found that essentially that each time a plastic said not proven lost of loss of sales and therefore there was no monetary damage the judge made it crystal clear in the remained rulings that he didn't find monetary damages well if you look at sectional levon seventeen it says that monetary damages are pluggable only in the only in the interest of equity there is an equitable filter through which this goes the judge determined that there was no equity for that the judge also had the authority to grant an equitable license in this particular case and the judge did that to the ruling makes clear that he found that there was an implied license number one not a written license not an assignment of written license and that's supported by the record number two is that the implied license was based upon the fact that there was a imbedded in one mold the name packs and we've addressed that to the court so the long in the short of it is he said look at there's an implied license that they can use the pastor mark limited to the mold in which the mark was located when they purchased the motes now your honour's we have testimony from from both m austin tire sorry good member's name so if testimony from robert johnson austin tyner who were both involved in the acquisition these molds and essentially the gist of that testimony is that there was no discussion there was no care on the part of  with regard to the pact or trademark run and in fact what the reaction was the molds now there's an argument here that all of that they bought this line of business and that was certainly no they didn't they bought tumult and that's what the essence of this entire testify was a was so honest on sale sold thirty million plus per year it is not an unsophisticated entity right there was no offer of trademark ownership my client negotiated to mark it there is nothing in the record that shows that they assigned that right on to p r there's nothing in the record that shows the p i asked them the record is clear that p i denied that they ever received those trademark rights so what the judge found is because of the fact of that embedded mark that they acquired implied limited license agreement under the authority of  equity in it under the trademark law so that was part of the regulatory scheme or because if you look at that in conjunction with the ownership issue the judge basically has now imposed the regulatory scheme that is anticipated and fostered by the lanham act that regulatory scheme is that there has to be a party responsible to control consumer confusion and then he has and we talk about the attorney's fees and here the lanham act finding wasn't that beyond the scope of the mandate of this court on me man i don't think it was your honor i think if you look at what the the ruling is i read  believe the case said that we argued that we were entitled to attorney's fees because we prevailed in the declaratory judgment that it returned that issue to the trial court for determination you did state that there was a the issue of ownership is generally a state law issue but it didn't restrict the remit and in my view it did cite some cases which among other things were  were referenced i believe by my p r that basically said that the ownership issue is a state law colliding and that there's no jurisdiction if you wrap if essentially the federal claim is strictly of a near covering the state law a claim will hear there was no veneer here there was a regulatory problem under the law that we had unfett confusion if you look at this court's decisions and you look at the definition of infringement the b and b hardware case says that there are two elements of infringing first there has to be an owner of a valid trademark secondly there has to be a likelihood of consumer confusion the likelihood of conflict toomer confusion was throughout the record it was unchallenged so here with the ownership issue being determined the two elements for infringement existed as a matter of record that if we could ship just a little bit to the alternative grounds that the district court gave on the state state law exception for attorney fees what are the best two or three facts that are supportable in the record that meet the standard under the iowa law well i think the connivance the best two or three facts are number one that there were there was a concerted effort by p r i not only to take the trade mart but to steal away the business  eastern iowa plastics the record is replete with these activities there was an order by aim vice president of the company to knock off that is copy one of each type of a plastics products now they try to justify this is well that's that's ok but if you take that in combination with their efforts to try and leverage away our trademark well known in the industry in branded that is abusive so that's one that's one particular effect secondly we have fraud that was practiced here in the fraud curate into the courtroom in other words they continued to maintain that what they did was proper and it was not and so that's another factor you have efforts behind the scenes where they were lying to each time a plastics to steal away their products for purposes of trying to copy them one of the key findings i think by the district court was that they waited to send a cease and desist letters right well in terms of when the cease and desist letters arrived but if i may there was a two thousand and seven memo that involved mr johnson that discusses the fact that in two thousand and seven he was going to talk to the lawyer about enforcing p r s rights against the ip there was no enforcement action taken then there was no notice given the e i b there was nothing they sat on it all right the second thing is if you look at the pleadings by p r in this particular case they allege in their pleading that the registrations were incontestable that's in their counter claim so you know i'm sorry but i think that that was their thinking is that the the in fact the registrations were in that they had they had ownership rights based upon their use in commerce and based upon those registrations and that they had ownership rights to that were superior to east i will plastics and they were not so  think the the reliance on the harken bird case i think is misplaced judge the late judge mcmanus relied upon the vansickle line of cases and that's williams versus vansickle it started about in the essentially that was the case where you had the county order who fabricated two letters and then tried to use those letters in trial well if you look at it in that case there was two letters fabricated in our case there was fabrication with regard to trademark regist rations they each were used in evidence in each respective trial the intent with on the treasurer's part was to disprove centrally the fraudulent misrepresent misrepresentations were misrepresentation claim against or the intent on in our case was to disprove that the eighty transfer ownership rights to e i p of the trademark now there was you know essentially the approach that they found that to be oppressive and conniving now there was a line of cases underneath the van slyke case that i would like to cite and some we didn't we didn't put in the brief one as klein vs the starts two thousand and two  to the extent that whether or not the prior panels remain and order extended to beyond state law considering that two members of that prior panel including the author are here today i think this court probably is in the best to explaining why that happened because the individuals at pi didn't understand and appreciate the relevance of the use they thought the registration or owner ert the ability to register depended on whether or not somebody else had it registered but so to the extent that opposing counsel says that p r a refused to ever even admit that its actions were improper that's just and correct with respect to judge grounders requests a question about the end contestability standard only response is to point to pis pleadings which of course have no relevance after we've had a trial and have actual facts the district court factual finding that the that part of conniving scheme was to wait and wait for five years until its trademark became incontestable is simply wrong as a matter of fact to the extent that attempts to rely on the  the employee was a that it was a public servant who had had documented had created documents to paper its file prodigally created documents to paper the file and then use those documents in the district court to not only defraud the other parties but also to defraud the district court and then in an attempt to avoid personal liability for herself it goes to the same line of cases that talks about a relationship and in that case it was the fact that she was not a public