we are here on the grant of a summary judgment therefore to paraphrase the supreme court did andersen versus liberty lobby the evidence of the plaintiffs here iron hawk is to be is to be believe and all justifiable inferences are to be drawn in its favor you know the words for every piece of evidence or fact or inference mentioned in drop boxes three were mentioned by my colleague on the other side to day is imperative to assess if there is a contrary piece of evidence or factor in for incited by on or off nd the issue of likelihood of confusion in a trademark case is intensely fact intensive and rarely appropriate for summary judgment therefore in this case this court regularly reverses grants of summary judgment on likelihood of confusion and has stated that summary judgment should simply limited to the navy and that's that's true for two separate reasons is true as a matter of evidence because we presented evidence that we also target and promoted and have in fact sold d to commercial customers so we had to deal with c v s the commercial pharmacy we were targeting dropbox itself which is a commercial entity but let me ask you about your deal with c b s i mean that was many years ago it was a contract for i think three thousand two hundred dollars or twenty three one hundred dollars i don't remember exactly but i'm trying to figure out you know how do we define the titular future clients that i think it's referred to in and what do we look at to determine who those are when you had that one exactly what your honor is d struggling with in this case which is is it solely current just immerse that are relevant or is confusion amongst other groups including potential customers one one retailers anyone in the market and the th circuit how that is the latter but it's not limited just to current customers and it said i quote it is well established that consumer that confusion on the part of potential customers may be relevant and so we're not just limiting we're not just limited in a trademark did and we all just get yes we had we had a c b s and we also have had other governmental agencies we had a contract with the army but i think the fundamental point i think you're dropbox and said we have this we have this smart same technology and we think it would go very well with you or with your dropbox features dropbox that's interesting we want to hear more and we had meetings with drop offs and so it is not simply us calling out into the wild and nobody's listening we are we are constantly meeting with with fair and i don't think it's consistent with this court's curious prudence to say that if your you've been unsuccessful up to this point that you lose out on a whole body of the things or if we do if your primary market is your main quest to release customer base here does that mean that dropbox wins no your honor it is not because once again you conclude that it would be too would be to view the evidence in dropbox its favor and and any differences in drought box favor and i say that because one inference that we can all i think reasonably d make is that members of the navy do things other then serve our country there are people just like you myself or anyone on the street exactly the thing as the product that was sold and offered in the navy well there's a suite of products all of our products are named smardz and i don't know specifically which forgive me i i thought from what i saw that march was a highly negotiated highly developed set of software of goods that are used by the us in trademark the question is believe are the products on goods that good recently bought by the buying public to come from the same source so it is a thank you your honor may it please the court this is an easy case it's an easy case because it involves different products used for different purposes bought by different customers through different marketing and both parties use their company names along with the mark in the marketplace so that the customer sees right there the name of the company whose product is at it as the same time it sees the mark and the plaintiff's product requires that the buyer the navy take significant care and attention buyers need to figure out whether iron hocks product is compatible with the technology they already have forty five and we think that that is just implausible on this record to go beyond that but that doesn't matter we would still prevail here even if there were some other c v s and that's because of all these other factors in particular i want to focus on the fact and it goes to your other question judge smith's question about the c v s and what they bought the degree of care that has to be given here to purchase iron hawks project product a significant it's a middleware feature it has to be integrated into the system that the enterprise already has at supplemental excerpts of record three  iron hawk talks about how they have to customize it so it goes to the care that has to be paid attention that just makes it completely implausible that a purchaser would be confused about who they were getting that from their h i t team who understands whether or not it works with their system it also goes to how different the products are and one of the really important factors also that these products are not related under the evidence that iron hawk tries to cite as actual confusing evidence is not actual confusion the district court correctly looked at that if i can just address it in three parts there are some pretty litigation look at that at the most generous light they are concerns that perhaps confusion could occur and the only other thing is the c e o is saying that maybe two or three times he got questioned at trade shows i asked the court to look at the surf case and the path smart case in the surf case those are both reverse confusion cases that were firmed on summary judgment for defendants both of them had similar type of purported actual confusion evidence insert five or there was one retailer who was actually confused one customer and then there was some trade show questions that's more evidence  iron trying characterizes actual confusion here in the courts that that's just scant and then in pet smart the same kind of oh there were questions there's a specific footnote in pet smart notes seven the court said queries are not actual confusion there is no evidence of actual confusion on this record in the district court correctly determined that the other point i wanted to just make at that same time is this  trademark cases three of those are reversed confusions and i also emphasize your honor as i just pointed out in both pet smart and a survivor and other cases there are factors that are considered on the other side of the scale but as a matter of law looking at those cases a look at this case summary judgment for defendant is appropriate here and sleep craft think it's such a good guide here in the way we out our brief any way you look at this case if you look at the weakness of the smart and the fact that these products are not related and they are not similarly experienced in the marketplace what is he there is marx had to do with the court finding that they were complementary that's a very different theory are in hock as never did not argue that before the district court related ness has to be one of three things dependent on that was a movie it was movie merchandise movie speakers movies people it was dependent on the movie studio and its product and they benefitted from each other so it was very closely related aspect there the other thing i would point out is that's very different than this case on the relatedness factor where they're here they're not related at all another big difference there is your honor that that mark is arbitrary and here the mark that the weakest end of the spectrum it's descriptive it says it synchronizes smartly in a better than average way i would urge the court to look at that at the bottom case a case which is about micro precision mark very analogous that to was just script it synchronizes and say oh well it says smart smart simply says it's you know better than ordinary write and why is that because they're products synchronizes for someone who has a connection that has some kind of challenge like if there's a instability or are a limited bandwidth that's precisely why the navy uses it to compress angry in waiting that are reviewing that i'm just wondering if i if i could just frame it a little bit leave that question because i think that because it's a the terminus is that's not the question your honor if i can step back for a minute i are in hock confuses the use of the word similar in a couple different aspects of the sleep craft factors so there are at least three ways  which the word similar creeps up relatedness is about use and function of the product then when you're looking at the strength of the mark and this being a descriptive mark smarts think you can also look to see if it's used in a crowded field that similarity does not go to whether the products serve the same use some function that's just more a generic feel the look in here there's more than a dozen and a half usage in the general software field that's the all state case if you look at all state it makes clear that just because two products the marks may be in used in a crowded field or even in the same field that doesn't mean that the products are related for purposes of that question the that factor the rd way that similarity of course is used as whether or not the marks are similarly experienced in the marketplace and we already said they're really not here that completely eliminates any possibility of confusion because it's undisputed that both iron harm and dropbox use their company names with the mark and if you look at the pet smart case that's a very clear support for that iron hawk tries to distinguish that because it was a tag line instead of a mark i mean the same logic applies also i bring the court's attention to our case we filed a twenty eight dollars a letter on that last week and it came out after we did our briefing in october we had done a briefing before october so we hadn't realized it was out before i had hawks reply brief and they did not cite it but we did find it in preparation for argument or cone is another case it was a counterfeit case it's not a reverse confusion case but the same rationale twice there they said you know in counterfeiting cases you look at likelihood of confusion also and when you have both companies using smart sync feature is simply a user interface it's a very clever important user interface for every day use of a computer user who wants to see all their files together so you buy it as part of a package on the dropbox website and drop boxes is part of all of that and is used there and you would necessarily see all of that but that's undisputed and what it does i allows you to when you look at your files on your laptop or desktop or whatever to see both the ones that are sort locally and the ones on that you have a dropbox account where you stored them in the cloud it doesn't transfer that anybody can go and get their cloud files but you might have to go to the website to do that if you don't have that little user interface that pulls down and let you do that it's a very useful porton way of synchronizing you know your files fifteen call the naming happened two thousand and sixteen by a name there's no evidence that they had any awareness of this mark and it was only when a trademark check was done that it was found and it was determined that there were more than a dozen and a half uses of this charm drop boxes there was no likelihood of confusion i mean using it and they're not used it is a mark so for all of those for those people and reviewing that evidence in our favor should be to the conclusion that us using smart saying then using smart saying the similarity factor which has been seen as critical ways in our discussing whether or not our smart city could be used with in their dropbox products weak that's the very definition of a complementary good and where where where in the record does that indicate that the  characterized it they were said move on there's nothing there to say and by the way their own general counsel said in her trademark search and iron hawks trademark or quote similar products and services isn't that enough to get to a jury isn't that enough reviewing the evidence in our favor better reasonable jury could find these products are sufficiently similar evidence of trademark strength the evidence of a strong trademark the district court below didn't even consider that it's right unfortunately your time is up as well let me ask my colleague whether either and he question for mr west when i do have do you have any case law the best supports your position on the park is subjective  that's a two dozen ten th circuit opinion indicating that in this type of case where there is a registered trademark with that presumption that the issue is for the jury and then nd of all there's a case of two different terms and there was hell that mark was not descriptive and we don't so i don't know that it is possible that we be having is a secondary meaning use over five years of a mark is prima fascia evidence of secondary meaning and so even if we were held to be descriptive we could still be protectable animes so then on a credit other