you every aspect of this trademark dispute i would ask the court of three specific issues that you would like me to address before i start talking about some of the sweet craft factors  when the products are in direct competition there are some factors that you perhaps give a lot less weight to for instance if you have two very similar marks on products that are directly competing you look at similarity you look at strength of the marks and you pretty much can make a determination you don't have to kind of go into some of the other factors which are designed to deal with products that are not in direct competition like you know what is the what are the marketing channels used and things like that if you know you have directly competing products you don't have to get into those kinds of factors because there are clear that there are on one side and the second thing that i was curious about  spoke very strongly to the point that what you have to consider is the overall commercial expression of the overall commercial impression that the market is the product and here i'd like to give an example of the lips mark appellant used was used very extensively on the the many small bottles of vodka that are sold on airlines and in particular over a million bottles of those little bottles were sold on alaska airlines so that's a million perhaps a few less consumers who were exposed to these many bottles that had each one as the overarching distinctive feature that lip design in a particular color to match with the flavor of the five there's nothing else critic distinctive about those many bottles there is just a bottle it's got a cap it's got a label most of it is silver or white or or black but what's distinctive about each of those little bottles is the tilted realistic lip design in the color that matches the flavor of the bottle so a consumer over a million consumers receive those bottles if they enjoyed the vodka what they would remember is that lip design then they go out into the market and they're faced with the pelleas product which also has as the the overall commercial impression the most distinctive feature is the again a very similar colored lip design that matches the flavor of the vodka so they're going to be confused as to whether that potentially came from the same source pelleas and their brief do go into an extensive breakdown of the just similarities between the two products in terms of the packaging but again fortune dynamics case six eighteen ten twenty five at ten thirty want to emphasize that the similarities must be weighed more heavily than the differences and even more so in the case or talking about ruling on summ flexible fluid test as a factor test the district court did focus primarily on similarity and it seemed that the district court felt that because of the dissimilarity between the product  packaging that alone was enough to warrant summary judgment at least that was the primary factor that the court seemed to consider but again you have to look at the overall commercial impression and for the reasons i just talked about a reasonable juror could certainly fin that the two marks if the respective products a similar commercial impression and it doesn't have to be the same commercial impression just has to be a similar commercial impression but you're essentially saying that one could look at these two products or and despite all the differences between them through the product packaging as a home you conclude that there was some connection between them because of one feature on on on the label yes your honor not just because of one feature because of the predominant feature in both the products the only feature that is arbitrary or fanciful on the both of the direction and i would say that yes they are they're still doing the same direction they're both very realistic depictions of you know a kiss or lips and again the coloring matching the the flavor of the bottle i think is a selecting the mark i'd like to make a couple points about that first of all and i want to emphasize as we note in our papers that this case did involve claims of both forward in reverse confusion so for purposes of a potential claim of reverse confusion what the court need only look at is whether the a police had constructive knowledge of appellants use of the mark which i don't think either party disputes clearly o based in part on the fact that jael beverage had registered on mark with that lip design so there clearly is constructive knowledge here and for perced purpose the reverse confusion you don't need to go to the extra question of was there bad faith intent adoption so factor seven for purposes a reverse confusion should be in the column of jail beveridge as the appellant with respect to the to the bad faith issue when you're talking about forward confusion there's evidence that there was an employee who was working on the poker line albeit in the business and financial aspect of the line who knew the owner of jail that was aware of the jailed beverage line of products during the time when parker adopted this mark that on top of the fact that they went for the massive roll out after they were aware of the jailed beverage mark could allow a reasonable juror to decide that the bad faith element also goes in jail beverages calling for purposes of forward confusion with yours i'd like to reserve my last six minutes thank you bothers me somewhat and that is the granting of summary judge we've made it clear in our cases that when we're involved in a case such as this and we're dealing with a slee and the third problem is the reasoning of the district judge the district judge in the determination of this case and i'm reading from page nine of the opinion of the district court however is plaintiff is unlikely to succeed on the claims now that's that was the motion that you won when they were asking for injunction is likely not likely seen on the claims the court cannot grant summary judgment in its favor but that isn't the issue the issue now should be is are a fact material fact in dispute so the district judges the wrong test and if if that's true why shouldn't we send it back let the just pick judge follow the proper test having in mind the example in the one industries case that we cited rely on that goes back to just verizon's earlier question in part two says you must look at the marks as they appear to hold yeah we've we've we've allowed it right but you come you come with a strike well as you come with one strike ok let me say that there is no genuine issue affect your what the marks look like there's no genuine interest in the issue of fact what the bottles look like there's no genuine issue of fact that we primarily use parker there's no issue before the court no the issue is is there a material fact in dispute and there is and the district court goes on to say that they are the plaintiff in the case under so a texan anderson they persuasion they have to go to that part of the district court some more than the scintilla of evidence in support of their like well isn't when you bring ace motion for summary judgment don't you have the burden of showing there's no material fact in dispute we have two options your honor we can show there is no material fact in the spew where we can show there's no evidence to support their case then we don't have to disprove their case times in your brief and here when i read it i was somewhat surprised that you arguing the district court found the district court found rather than the test of this is a material fact in dispute and maybe you would take exception with our wor get i think that i believe you have to look at the court's order on the motion to reconsider where she clearly says i did apply the summary judgment but it doesn't matter either way it doesn't matter because we're doing up to knowhow anyway are compared for sales with those of the trademark owner infringement usually be found in some markets are sufficiently similar that confusion can be expected when the goods are related but not relevant circumstances in accessing the likelihood of confusion and then it says in determining whether confusion between related goods is likely the following factors are relevant and let's right this is a case i'm not sure there is another like it  so we look at this week with factors and apparently to at least factor two five and six are found for you or your the opposition so you don't have a homerun here where all of them are one way and if those factors are to be determined to get the all how i don't see how summary judgment fits in they already have three is there this circuit including the one industry case that we rely on the brief number of factors can go both ways and summary judgment still be a proper appropriate in the mtu case so i did it by the district court and in our the court said typically in the competitive goods arena the critical factor is the similarity of the marks and one industry say relied on that to say even though they were both over designs they were both  pretty similar to each other and we then retreat and look at the whole the trademark absolutely your honor every trademark is that i know of says you have to look at use of house marks you have to look at the packaging the labeling the finds you have to look in this case as your own are loaded to the bottles are completely before it's stressed very little but the fact that you know you're using the lips and coloring them differently for different flavors does seem to me to be i mean not just flipped the lips in different and that case a car would be just a descriptive decorative flip using green for green apples for a flavored apple would not be an unusual but again you're honored you have to look at the products the packaging as i mean i mean for example coke and p r s on their big bottles in their glass bottles or plastic bottles there can still coke right right and somebody looking at it would say well completely different bottle but it's quite different though we don't use it on that we don't use it on the top so oh i'm sorry can i have one that you can have all right women like i just want to say one thing on the intent issue the time we did our research their application for the lip standing alone was didn't exist so there was nothing there for us to see to have knowledge of but is that critical time or is that the critical timing on another  i mean if we don't think there's anything confusingly similar just because the fact that you get a letter doesn't mean you have to destroy billions of dollars that doesn't have its intent i see i mean there's no it's you know you get into reverse confusion case you is considering whether it be that the lips being so similar and the colors of the lips matching the flavors of the bottle so that maybe make the mark sufficiently similar that shows that a reasonable juror could go that direction as well and that's what we're talking about we're analyzing the similarity that marks you don't need to produce empirical evidence from customers you could if there's a survey done you could certainly use that evidence but that's not why i don't know how i  in generally speaking and except in very rare cases the court is not supposed to decide it's supposed to allow the parties to present all the evidence to ensure i understand that and the jurors are no better position are they well on that question without hearing somebody who actually saw the product and made some judgment about it well that with the with the cases tell us just because the test is so flexible and requires you know differing minds may differ when they see the two products as they're displayed is the overall commercial impression similar i mean reasonable minds may differ but that's why i suppose to go to a jury one person here is the judge decided no but there's evidence including color the marks to show that the shape of the marks the fact that comparing terms of similarity i think we are comparing both phillip standing alone and the lips with the johnny lavaca because if you look at the johnny love mark the lips are seven times the size of the text the words are no i think i understand that i am what i that they did find that mark when they did their initial searching you know pointers it doesn't matter whether it was registering the point is they knew about the no that mark that mark was registered with that with the big lips in the very small text with the journal about this so they saw that way back in their first issues of whether they had a concern about common law rights versus registered rights but that's complexity i don't think we've dealt with here but i would say with respect to the reversed confusion point opposing counsel references to dick hyper the predecessor to being used lips for a long time going back with with liquors of course totally different mark that was like a cartoonish lip mark that has no similarity whatsoever to the two we're talking on here it's not tilted very realistic lips that we're that we're talking about in this case that are you know at a very similar slant and again the colors match up with the flavor so it's not like they carved