patti's brand it was no evidence this was a trademark infringement case the record everyone agreed to show that there was no evidence of a likely to confusion the court so found rather than proceed merely so then enter judgement for the defendants the core instead prevailing party and i understand your position that the district court found no dispute that there was no likelihood of confusion but the district court didn't grant your motion for summary judgment it didn't grant or deny it and it didn't grant or deny the other side's motion for summary judgment i also get your point that the district court proceeded to do something that neither side had asked for as i understand it but  it it's a little hard to jump to the conclusion that the district court granted your motion when it didn't grant your motion well your honor i've got an understandable point and it's a point that was made by the apple here which argued that that this appeal should not proceed because after all if you brand one we made the argument that your honor just it was that well winning looks a little bit different winning when you have a motion  a motion that's available under the federal rules there was a real sense i think of a part of our client who did not represent at the time that you know a fresh look from the  already was familiar with the underlying procedure as fast as this case was appropriate here but white why is this judge lynch again why isn't the right thing to do to send this back to judge stanton and ask him to ru and to explain why he did what he did if you're asking us i think in a certain way to revisit the case from the ground up and decide the motions that the district court conspicuously refrained from deciding isn't that right all only if only in it and it sort of sort of abstract sense but as a practical sense your honor the court found everything that was the justification is it's certainly a peculiar thing to do i would agree with you to then proceed to enter a direction to the patent office which wasn't a party here but doesn't that same ruling  undercut the patent office and trademark offices ruling denying your adversary's application for a trademark because that was based on a likelihood of confusion between these two marks under any circumstance this is a specific claim made by specific specific action when there is a to the proceeding pending the district court does not have jurisdiction to make pension obligation to prove a likelihood of confusion so whether you are you maintaining that the way you are aggrieved by this ruling is that you plan to go to the patent and trademark office and say there is a likelihood of confusion in the unlikely event that the teapot if you have already determined that there is a likelihood of confusion we don't have to do that we don't have to make that argument because the p c b are ready hat but if if that as between those two marks there may be a lack of the confusion not only are we entitled to argue that the rest of the world has a title to argue or to oppose publication of that mark which dr stanton prevented from happening opinion in effect why can't you guys just get along and why don't you each use your own trademarks and you know let a one hundred flowers bloom and that seems to me and even more compelling point today as we hear this argument from our homes which you are making from your home or your office because everything in new york city includes it including presumably both of your restaurants is closed the restaurant industry is on life support and it's unclear whether any of any restaurant in the city is going to be able to survive all of this and you guys are fighting over what twenty years ago i thought judge newman had a pretty good notion they can be patsies pizzeria you can be what was it paddys italian restaurant in new york and just let it go why why are we why we doing this after twenty plus years of litigation we got sued your honor yeah i know but you're here actually you're not complaining here about the outcome of the suit in  far as it charges infringement your complaining about your being frustrated in the effort to frustrate their use of their trademark before the p t o that's what that's what we're here for that's the plaintiffs in civil action with infringement of that judgment and our favor that there was no one for it and whatever may happen it's easy a b we can have the argument about that and one thousand flowers bloom but we are entitled to what was the judgment say trying that there was no evidence of actual confusion not that there was no evidence of a likelihood of confusion on the record but that there was no evidence of actual computing and he did find that there was no survey evidence of actual or likelihood of confusion a but i did what he did as far as the one hundred and forty nine and and the nine hundred and forty one marks as a result of finding of no confusion there's nothing about superior marks in his in anything as he was itself the courts will enter into if they have federal jurisdiction based upon a claim of with respect to one of the registrations but there was none of that here he just sort of left ahead and decided well i found  computer and because the court had jurisdiction on the infringement claim it had conquer interception under section thirty seven to rectify that register and make sure that the register conforms with the judgment of the court and that the  entire purpose i believe a section thirty seven which is to allow the parties and the court to hear you to use your words your honor to skip over having to relive the exact same issue where there is a supreme court is telling us well let me clarify for you for for nike in one key that was a declaratory judgment action that was an action where the court found that it actually did not have jurisdiction to decide the infringement claims that's not what happened here the court had jurisdiction to decide the infringement claim and then it went and it remedied the register so that it reflected the realities of that judgment and maximize judicial economy i always mean it is maybe this is judge lynch i'm having a little trouble understanding how you get a remedy from the court by bringing an infringement claim which apparently the district court thought was meritless i understand that and i won't deny that my client is to be able to sign the register marks but i think the remedy here is actually a remedy to correct the register and in a remedy to make sure that the register black does what it's supposed to do and reflect the realities of the market  way we did not ask for it directly you know and with the benefit of hindsight then that might be something that we would amend going forward especially if this was remanded but our complaint didn't make clear you filed what turns out to be at least according to judge stanton i think a marriage listen frenchmen claim if you had just continued to litigate through that process and then appeal their judgment resolution but instead you file this action which well i mean maybe it's jumping the gun to say you lost or the district court said it was meritless because the district court didn't actually say that all the district court said was that the there was no likelihood of confusion but it's you know to say this is going to be inefficient now to send it back to the p t o is maybe does that really work for you when you were the ones oppose registration at which point we would have to litigate back again in the trademark office possibly see that appeals to the southern district but again back to your original point that this action was not maryland i will be when it the the order that there was no likelihood of confusion and with that part part and parcel to my client's decision to move on here and to not appeal that order is because they did get one of the things that is very important to them which is the honors attention to the county food court which is that page forty five agrees and in that case the majority of the case focuses on an appeal of a petition to cancel the trademark office but if your honour's read the case all the way through application that was owned by the defendant so we have one case where the court ordered registration of an application that has filed yet and we have another case where without even an agree quest by the party the court orders an amendment of an application in order to you think a district court would give you more fulsome relief that you can get in the g t a v is not a grant of jurisdiction to the district court to provide that would certainly counsel for io being repeatedly used the phrase the register should reflect the validity or the reality rather of the marketplace there is no evidence in this record whatsoever concerning the marketplace there was no evidence there was are certainly evidence in the writings of confusion there was no evidence in fact of the use of any trademarks in this case there was simply a lack of a finding of a privatization element to established infringement of a trademark provided with the tools to make such a determination regarding a pending market under the weight of act as provided by congress