factors it's also wrong as a matter of public policy if the just records analysis is correct all that eight a competitor would need to do to get around another company's trademark is simply change the font and the capitalization and that would do would trademark law all together help me with what for me is the hardest part of the case as standard of review it looks to me as though we have case law saying risk of confusion although there are legal aspects to it is a finding of fact if you get clearly erroneous review well you can satisfy it we have a case where somebody did overturn a case on clearly wrong on the clearly erroneous or despite the clearly erroneous standard i think you cited however it's a lot harder and if we have abuse of discretion review that doesn't really allow us to substitute our own judgment of how to apply the sleeker if factors of tell me about standard of review certainly so that there are two separate inquiries as part of the standard over the factors right but the error in the judge's legal analysis is that this site sounding meaning test doesn't exist you know a vacuum it is set up as part of a complex system of of legal principles that's designed for two purposes one we have different weight they're given two different factors under the case law as a matter of law and two we have  we have the situation where this test is designed to to approximate what goes through the consumers in mind as they a come across these marks in the ordinary a burden of proof problem about whether we remain for the district court to make the finding in the first place or do we decide without those errors how we would decided how how  doesn't actually challenge that there's an error in the way the district court considered those it simply says error was harmless least that's how i read it and where the court falte the plaintiffs are not ringing in evidence on things like intent an actual confusion we have cases that say that those things are either irrelevant or by no means no worthy and therefore it's neutral and it does not favor from the other drink you only get it truckstops and convenience stores or i couldn't follow it looks to me like two different drinks and at least one albertson's i think carry both and some other got at some other stores but i can tell what kind of stores that the state of the record is that these products are sold both sold to reach our customers in the same grace grocery store chains like albertson's and in the important issue in this case the other fundamental issue that i think is kind of important to make sure we all are on the same page is the kind of mark that you have my understanding it's a standard character mark is that correct it's the all of the design variations is that right that's correct i wonder if you looked at the standard character mark we would not necessarily conclude there's no infringement because the presentment is different for example if if i had a standard character more for the word for word it would not be a defense to say we're using forward in red letters three few inches tall and we're using forward in connection with the sale you mean you said the product in connection with the goods and services for which it had been registered so in this case we were registered under classes thirty and thirty two which include fruit that bridges so any fruit beverage we have an exclusive right to use this term and that's exactly to avoid the scenario where somebody comes out with a ford car that you know they use a different thought hey we own that m found as a matter of fact that they were very closely related that bridges so that when we have a standard character mark we look not only at the visual but the audible and the meaning that he suggested mark may have more power to it than a non suggestive mark made up word is that right or wrong with the quotes are found there sort of a spectrum of the strength of marks if you and you have generic charms that they have very little protection you don't have descriptive terms that also very little protection and then you get to things like descriptive i'm straight like suggestive marks like part it's not  natural but it's actually and if you drink a lot of caffeine and sugar which is i guess people get energy drinks for their on a long drive and drowsy and they get pomegranate juice because they think it's good for their heart  health concerns would go in looking for pomegranate juice imagining or believing that it's good for itself and think oh gee there's something that's pure pomegranate juice out of even better  isn't that sort of confusion we're talking about or are these playing the different type of drinks or are they the same drink there's there are several types of confusion that my client is worried about the first type of the the risk that's presented here is that here's somebody who grabs this energy drink as serious you know health issues related to it and there's confusion that's hey that energy drink belong to palm we thought palm was healthy and now there's energy drink so i can i can see why that factor would come into the fore test of whether you get a preliminary injunction or not exactly but that factor will then says yeah my client's really going to be hurt that's not a slee the first legal air is a district court conducted a side by side comparison of the two products in a two marks and that was a legal error because that's not the way that consumers experience these trademarks in the market they're not side by side on the shelf next to each other you see one trademark or you hear about one trademark you have an idea about palm right and then you go into the store and you see the other trademark some time later and so we can't do a side by side comparison like the second then with the district court focused on with the visual appearance of the of these two marks when the case on its very clear you have to look at the dominant portion of the mark why do we look at the dominant portion of the mark because that's the part that similarities with greater weight then than the differences the way the case was set up is that because we don't we present can't make a side by side comparison we're trying to put ourselves in the in the shoes of a consumer who's experiencing this mark he may not when i'm walking down the aisle when i'm thinking about being calm i don't remember what the font sizes for palm i don't remember that easy part you know for the video i only remember is the word problem when i see the dominant portion of this mark that's being used here the correct legal analysis is to take that dominant portion and give greater emphasis to that dominant portion of the more you count so you eight it is the entire label of the purebred purges product at issue it is caffeine free on natural products does not present health risks of any type is not in the same category we get to this visual when i would look at the pictures in the record they really look different when i go to the drive through at a fast food place and i asked  pees burger and a coke and they say do you mind if it's pepsi none of us are looking at the bottles the other day i went to the grocery it was different grocery from the one i usually go to and clerk where do you have such and such and it was just the word i don't really see why we should just look at the bottle side by side and say oh they look different when they're just different ways consumer buy these things sometimes by saying that's not the stuff i usually buy and when they look at it and sometimes asking somebody where it is just asking somebody to grab it off the shelf form or telling their spouse hey why are there could you get such and such and i don't see why you wouldn't have to look at the mall i i agree with i think you're saying which is if we go back to sleep craft and we talk about ice the whole the whole look for it in the grocery store i ask someone to find it for more pointed out to me well we have to look at how these particular products are actually i don't see how that helps you if someone says i want palm and them other than to sow confusion with palms product so i think what you're asking is a different question let me answer your question quickly and i'll go back to the other one the reason for using category for that sort of thing a name that isn't really the english word except that it is both and the column is a thing this word for pomegranate no it's not but it is an abbreviation for pomegranate and in my culture these days bubble gum and candy flavors of six and seven year olds and i razzed bitter when you were rooting for the other team that true true in popular culture these days however there razz we would argue are are products are encountered in the marketplace and the three examples that you gave which i think very well illustrate exactly what we're dealing with in this situation a product is not sold through a drive thru window at a fast food restaurant that's sold in grocery store it's sort of groceries and that they do and that's the one that's relevant to you challenging that there is a standard character or that that's interesting because we're not challenging there's a standard character mark however i can't quite follow palm's argument that i'll let me just ask you my question then if and let's let's go back to judge people's question about ford and it's attached to an automobile so we're dealing with like things the fact that ford uses a certain type of  sold a nother ford automobile where you used bold letters and put funny little marks above and below each of the letters wouldn't that still infringe forwards standard character  mother i don't see why it's different actually i can see where if i'm a weekly buyer i'm going to not even look at the word anymore i'm just going to recognize the bottle and the color in the shape and he's going to recognizing grab it throw it in a cart the other hand if i'm visiting my grandchildren and my daughter in law says i'm going to grocery anything you want me to pick up and i s oh yeah i like palm and she's never bought it before she said going to know anything about the shapes of the bottles all she's going to know is one of those palm and one is pure palm kwok at the pure stuff it must be healthier responsible they're the shapes that and the heart don't help you a bit and what's more a lot of products come in all different shapes and sizes like you go for coca cola they know is this person for some reason says they like coke and they don't like pepsi or something like that and that's why that's why the court i think of the situation and it up focusing on the on the visual what the what  because sometimes people get stuff i mean because i get my guess is this really typical when my kids were little i did all the grocery shopping i differ with my wife wants to just follow the list and the visual didn't mean anything visuals really controlling for some people with some kinds of shopping in irrelevant for other people doing other kinds of shopping and i don't understand how you can make the case standard fa excruciating detail laid out the differences that the court felt were determined to have in this case and the court obviously anticipated that he would have to back  position whatever your first time buyer read an article in new york times or wall street journal one of those health columns about how pomegranate juice is good for you so they go for it and they any consumer is going to be able to see the difference between a pure shoes beverage and a high energy drink soda with particular flavor i something of that sort fair when the the price is so small i mean that's one of the factors to consider in the comparison comparatively the prices are very different well as you have been but it's not like buying a new car where you could expect the consumer to get beyond the between a forty five dollars drink and i'm going to two dollars drink and wonder why you think you're paying forty five dollars for a small package there you have to look at the relevant marketplace in the relevant marketplace yes we're not talking about buying a car and buying a soda there's obviously a huge difference there what we're talking about is in the realm of beverages is there going to be i just you can buy sunglasses for five dollars at the gas station you can buy some glasses at  their cost of living in the shop at whole foods other people groceries are big part of their cost of living and i shop at wal mart once they're at whole foods they may just use price as a shorthand for quality in the fact that it's five rather than two is a good reason to grab that one but still the grocery shopping is something they do on the way home from work it's not like buying a car where you read all the reviews and you go up specially on saturday to if it properly applied if it applied the proper standards yes but as far as how to weigh those factors and how do you interpret the evidence counsel in that regard if you agree the district court put a lot of weight on that why isn't that a legal error that just skews the whole weighting process in this situation this record didn't put a lot of weight on that in a situation that the district court put its primary weight on visual with no discovery at all is that right that's right so that is the questions that the court held against palm like the the c enter the intent to infringe and so forth that they held against  that was in the context of a situation where public ever had the ability to discover whether there was an intent out there or not is that right that is correct and that is in fact the reason that is such a trade dress cases however palm itself relied on the cost pharmaceuticals case which is a trademark infringement case where the court the question for the court of the preliminary injunction stage came down to whether the labels create the overall impression well in this situation the district court found that they did not thank you counsel  mentioned that the idea that palm was somehow a flavor indicator rather than the the name of the product and that's not the case because if you look at page four twenty five there are other of the excerpts of records going three other products that they have are many many cases that it found even under the clearly erroneous standard that there was that reversed findings of just similarity and the first one we talked about a lot is the slick craft decision itself brew nut reverse for clear air in the more business forms case nine sixty s second forty six it was compu right versus compu right with a capital r and a different stylization reversed for clear air that an injunction isn't presumed presume irreparable harm i think the evidence that was presented here of irreparable harm was at least three different points i'll make on that one you have an energy drink product that is a dangerous product and i know we have counsel representation  clear error and that an injunction should have issued but we left the specifics of the injunction to the district court on remand to fashion the appropriate scope is that what you're talking about well here i think you can go further and order just a plain injunction the facts of sleep after a little unusual am i right about what we did there yes but because the facts were slightly unusual what happened in the sleep decision itself that the infringing mark had dramatically altered its mark after the litigation had begun and so there was some lesser risk of confusion and so it was sort of sent back to the district court to make a decision as to exactly what the