is which party in all speak of each set of parties collectively as a party here which party gets to use the woodstock mark on cannabis and cannabis related products and as you can imagine that's a question that is  increasingly important is these products are legalized at least at the state level in an increasing number of jurisdictions both parties in this case have used the wood stock market for a long time it's not just  then the litigation over all that specific issue in this appeal because this comes out of our motion for a preliminary injunction the specific issue in this appeal is whether or not ventures use of woodstock mark on cannabis  infringes our rights which we have by virtue of federal trademark registration actually to registrations for smokers are equals there's two basic legal issues here one is the extend further with respect to other uses you're going to have to rely upon i think i think the answer to your questions yes if i understand your question the let me make sure i understand o that's how we structure the case and that's why our case follows from the rights that we have specifically in smokers articles and i'm sorry and i appreciate your trying to explain this i found myself getting tied up in the ads in this are you suggesting that you are disclaiming the actual trademark rights with respect to cannabis well it's not so much that we're disclaiming it it's that as a matter of law a party can't have federal trademark rights  based on an illegal use so it's not that we're we're disclaiming it or saying that you know at some point we wouldn't have the intention to use the mark on that but that's not the basis of the rights that we're focusing on for purposes of this case and this preliminary injunction that those follow from our registered trademark rights and smokers are equals but that's what i'm saying is are you suggesting though that you have rights in smokers articles and that there is some spillover right that's going to spill over into cannabis or are you saying don't worry about cannabis we're not claiming that right we're only claiming the violations with respect to the smokers articles no we're claiming violations with respect to the cannabis but that's because cannabis is related good and so there is a likelihood of confusion that's created by the so you are asserting rights as the campaigns yes you're not saying that they are rights that are derived directly from your registration right and that's a good way to put it your honor the rights that we have our rights to prevent infringing use by confusing using cannabis so so we do have rights to excluding strength of the mark and here i'm sure you've had this record here and in giving very little or no weight to the fact that the mark is agreed upon by both parties to be arbitrary which is the highest level aspect of the market here and part of the reason that there isn't more evidence on this frankly is because you know we're relatively new and we've been impeded from implementing it business plan in part because this issue of enforce you have federal trademark rights that you are entitled to and force and so those shouldn't be defeated just by virtue of the fact they were relatively new in the market the other thing that i would suggest is that the does it have a rule with respect to a market that is is arbitrary were to see if it's somewhere else on to the polaroid announced susu or you know how does one think about well i guess i'm not go argue that it has no role but for instance if you look at the macgregor doniger case cited by ventures there it's almost described as something that will usually work in favor of the senior user which for purposes of this motion we are the senior confusion and let me let me ask it in the district court said it's appropriate to consider the size logo typeface and package design and it says there's he says there's little evidence here as to those factors and defendants have offered no evidence as to how their mark is typically displayed so what basis could he find when you're saying that he should just look at the word would stop regard and disregard there that it's typical presentation in the market well one piece of evidence it is in the record your honor  approached suggesting that they work together on woodstock granted i counted those products and obviously you know venturous has put in this evidence to make their showing of a likelihood of confusion but that just shows how if you in terms of distinguishing do you have different claims as to the smokers articles as opposed to the cannabis i can see potential distinctions in the record and frankly it seems like your claims are relatively well meaning and how you want to look at it either weaker with respect to the can but i'm guessing that all the money here relates to the cannabis i don't know how much money you're going to make of simple lighters but can you tell me whether you think that even arguably if we were to find no abuse of discretion with respect to the cannabis do you have any art argument that could never the less be sustained with respect to the smokers articles as to what you actually have a registered trademark well i think it would i think that we could you know for instance the proximity of the mercs analysis would be different held that there was no proximity of the marks because they were you're echoing adjust our dinis comments about the the the briefs tying him up in knots that's because the briefs address issues completely irrelevant to the point on appeal st of all they did not specifically about rule on priority and he said he was a avoid priority because didn't need to decide that issue now the nd point that they sort of confused things here is that they spent a lot of their brief again some of the same sections they spent time in their brief arguing as to what the strength of ventures the appellee what my brother mr spiral calls ventures and what the strength of its mark would stockists that's irrelevant before this court market and say not a cigarette with marijuana in it because it's disclaimed to far say not in a tobacco cigarette but in herbal cigarettes and you know i understand you're claiming that you've got priority with respect to two smokers accessories which would your position be that there would be no likelihood of confusion between are herbal cigarette marketed woodstock and your and your smokers products with the dove and the and the guitar well you know it's very hard to address a sort of a naked hypothetical without the tire record but i would say that the issue here is the strength the strength of the ventures mark which stock would come into play if we  party making the motion the confusion here is that venture's is the original plaintiff they entered the market twenty months before the motion was filed they put apple once on notice of our claims thirteen months before the motions filed we actually sued the appellant's six months before the motion was filed and then all sudden in august twenty seven of eighteen it flipped around and we're facing my client is facing a plenary injunction motion and that's why there's all this confusion the issue of what the scope of my client's rights are would be tried below in the under the complaint it's not an issue before this court and it likely he answered i don't such i can see how we can avoid the priority issue i know the the only issue for this court is the fiction of a constructive data st use for smokers articles back to two thousand and thirteen right now when you look at constructive use in an intent to use application under certificate smokers articles it does not extend beyond anything else does extend to herbal cigarettes or does a space then to marijuana cannabis it does not go there that's because the question of trademark strength stems valid the party following the application has to have an intent to use the mark on the goods at the time of the application and the person mr checkoff who filed the application that maturity into the registration the two thousand  application specifically testified at the hearing that he had no intent whatsoever to use this market connection cannabis or marijuana therefore it cannot be any good faith used that's an issue of go to priority which again judge god if it did not decide because it was  necessary because he made a decision based on like his successor the merits now say some of these issues also go to the next step which is proximity in the market still area goods if we're talking about a smokers articles versus decide whether in this case your clients were somehow infringing the mark boal with respect to smokers article and with respect to cannabis and again i get and the money is in the  we're asked to decide both but is that not true are we only being asked to decide if there's infringement with respect to cannabis yes that's all you're asked to decide that's all that judge scarface below assessed aside for example that's why he didn't have to look a priority if you were just talking about smokers articles versus milkers articles there for the same products you'd have to decide priority because he looked at and that's what judge that's judge can't just go to face paying in states is looking at marijuana versus smokers articles and those are different goods so start different goods you have to look at not only you have to consider the issue about whether or because of the existence of the smokers articles registration now judge guard if a correctly that he did need to cite priority because when you're looking at similarity of goods two things one bar d i don't read our cases is saying that a party can ovoid the proximity issue by disavowal with respect to a particular product if the question is confusion as to sewers how does the disavowal of manufacturing a menu for a marijuana cigarette go to the issue and confusion as to source ok well there's two things that's why there's confusion and why perhaps why judge nardi comment about being tied knots for example if the if this were if the shoe were on the other foot if we had tried the case below and a decision was being made by judge garvey at trial on the merits of the comp products were selling woodstock branded marijuana which they clearly want to do what consumers seeing that would associate it with my client woodstock ventures because of its history of running a music festivals  it before this court is judge garda fayed edified and quite clearly that they were trying to assert affirmative rights to enjoin the plaintiff which is why client ventures in the case based on their registration the they're there ted to use application based on the fiction of construct a st you state which would never of issue and therefore would never have been an issue in this case and could not even assert in this case had they not explicitly disclaimed any connection with marijuana therefore he declined to extend rights to products on that basis and i think not only did they explicitly disclaim it but as i already quoted to the court the person to file that  difference that's why you have to understand that that there's this whole case about flipped on its head it terms of strength the argument touching that briefly if i may counsel's argued that judge  a an error by not ruling in favor of his client a question of strength of judge card if they did find that the question of strength modestly favored the appellant's in this case however corrected the end of the day at the end of the collusion judge garda fake gloated that all these factors including the strength factor did not support the issues for pulmonary junction now they do not dispute and i think this stems from a sort of a fundamental misapprehension of the point of secondary meaning versus strength for example a site hasbro now they talk about secondary meaning the when you look at a mark you say is there a mark and to what is  strength mark so if there is a mark you look at what they've judge friendly if you have it you have this continuum is it generic is descriptive is it suggestive is it arbitrate is it going for example and the breaking point is between descriptive and suggestive if it's inherently distinctive then you don't need to show secondary meaning and it has brought itself which recites that very simple rule which we do not dispute at all the cases support it has out a very next page that opinion page seventy six ably says however now you need to look at the commercial strength of the marketplace because that's what you look at is what are consumers going to take away from this will the use of this mark likely to cause confuser and strength as opposed to secondary meaning is what you look at your your argument that commercial distinctiveness can qualify the distinctiveness of a arbitrary or able to cite from this court we err a arbitrary mark has been found not to be distinctive because of you know the volume of marketing one i want to make your clear distinction here if you have an arbitrary mark it's distinctive that's of less it becomes generic it's distinctive and nobody disputes that the question is what is the breadth of your coverage so for example clearly object to that you get a junction if this case yes if there's an arbitrary mark and this and it and a senior user you're suggesting a senior user preempts the new users market some way case and your nd you know on the record before us you don't have priority you decide all of the sudden you're going to come into new jason marquis and and do a lot of marketing  know you're out of what you describe as what we call sort of an in our trade reverse confusion and you're absolutely right you have reversed confusion so if i have a new user and i come in and try and over while for swap the senior user with marketing so that people recognize or believe the mark belongs to my client yes that's actionable you can file an action the land back so that you do an analysis or reverse confusion and if you're correct you win but that's what you've got to go back basically to try the and thirty eight which is a two thousand and seventeen decision this court of the district court found that jools was inherently distinctive and therefore conceptually strong but that there was evidence that the ark was weak in the marketplace this court and to be relatively strong base to conceptual strength but it's not strong in the marketplace so clearly the decision this court for last twenty plus years have been you look at strength separately from the question of whether or not secretary meaning is required to show that the market is actually a market all to cope or i'm sorry rant over i've sorry or that's quite all right you're answering our questions and thank you very much for your arguments we'll hear rebuttal mr have priority rights in smokers articles because that's that's the basis for claim here that based on our not just our intent to use application but that application is mature and separate registrations that continue to be actually one thing i would just like to touch on before that is related to the procedural posture of this case what precipitated our preliminary injunction motions here it was not you know some sort of gamesmanship this  streetwise maps disappointed like to make on that and i apologize i'm not exactly sure of my time because i think it's you know you have about another make another minute yeah the clock it's a good switch so with with respect to case in addition as i recall part of the reason that the market in that case lacked commercial distinctiveness is because it was hemmed in by a lot of rd party uses not necessarily because there was a lack