convincing evidence that there was a likelihood the claimants would succeed on the merits of those claims and in particular because the district court adopted the findings of fact and conclusions of law that were submitted to it by the plaintiff it is our position that under comstock this court should pay special attention and give close scrutiny to the court's findings of fact and inclusions of law in the first instance with respect to the issuance of the injunction itself unavailable to expands there is a great amount of interest in this footage as is evident in the record attached mr mallock declaration the various comments on amazon dot com that the fans of this band were extremely interested in this footage being available for the first time to them and unfortunately the district court did not give any credence to that public interest prong of the policeman or injunction issue with respect to the merits biggest problem here by far is that the district court completely failed to analyze the nominative fair use defense that this court has established starting from new kids on the block all the way through terrence versus franklin mint playboy records versus margene that is exactly opposite of the holding in brothers and all the other ninth circuit cases regarding this in fact when it is a secondary trademark use of the market that is when there's no question here that in order to identify a d v d about the kids there and we would have to use the word kid in the title as in fact what we did in the second prong of the testing is a f we saw that for the first time on appeal it's obviously very difficult for us to now try and debate a factual point in front of this court but second we don't believe that it is substantially similar not that that's a trademark testament docking those words obviously trying to say that this is a particular group and identify the group which is known by the trademark as the word kids so there was this sense other meanings but if that's what with you know is this really a copyright case not a trademark case and if so are you allowed to use trademark law rather than copyright law depend on the trademark with pages because back when we have a violation of both i mean what is it that just because there's a copyright or potential copyright violation what is it that says there can't be a trademark violation for selling it says brant intrinsically your honor but under day star for example regardless of the copyright status of it this is not a source identifying use to begin with and should probably preface even the nominative fair use discussion with the fact that if they start finds we think it does the origin of the goods here is with passport it is not with kids the communicator of the idea so in the first instance it's our position this isn't even a trademark use the second point more to your honor question under comedy three there here can be both but  rob pointed out is the issue of how much should we use and we would agree that it is not unreasonable to revoke the correct identity of the band by using the logo even if it is the font we don't believe that we did we don't think we crossed any conceivable depicted in the picture is the facial pain that of course is inseparable from the performance and from the purity of the band because they perform in the facial pain so anything and any picture of the band just is by virtue of how they  consumer what's inside the truck driver and your brief makes the point that that passport does not use the kid sluggo design so you're raising a question in your own briefest of what the box looks like and how the board case appears on the box and i think just to me that we do have in front of us an issue with regard to what typeface is used in an issue with regard to whether the painted faces appear on the box or not because if all you're trying to do is say this is a video of the band called yes you can do that without having a logo that's at least somewhat resemblance to what the band has trademarked and without using the painted faces well we don't know that your honor because it wasn't an alliance called by the district court that's actually or are we believe the reason i bought a first name is because there is case law saying in a person's name and situation one of the ways to enjoin a product would be to make sure for example there are disclaimers which we had on our product or as you're pointing out perhaps a more narrowly but certainly by the time of the injunction i believe both of the packaging and the website are website distributing the product had the disclaimer on the front of the well that was on the front of the package and it was on the website itself applies but here even if we applied sleep craft and went to likelihood of confusion there really isn't any there's no evidence whatsoever in the records the only evidence is somebody saying this is not authorized by the band we do have the disclaimer which unlike the total hope was on the front of the packaging not on the back and even the court in toto acknowledge that if it had been on the front that might have been sufficient to get a good infusion we have a good a situation where we did license the footage we didn't just bootleg it and run out and sell this footage without permission we got a license for it so with that if they have any reason to believe the party got the license from has the rights they represented that they do to us roger knows there's correspondence attached to the declaration of mr in support of that you are application where they say in correspondence we own the copyright in this motion picture and that's what they license to us very quickly dilution arguments also fail because they're not trademark uses also under dilution they have to show proof of evolution under mostly there's no proof in the records just includes restatements the rights of listen claims here are clearly either not there or they're accepted under the statute thirty four forty passport green tour has been consistent in all of the letters that it's written in its public pronouncements that it does not have the rights to commercially exploited product without the consent appears at best then it would have had at best the limited license to enacted by congress to to deal with a situation where we could have raised the claim under eleven zero one on a deal with the situation where there is an unauthorized reproduction distribution of a bootleg hundreds if quaver copyright protection  clip of the three stooges klein on the television in the background or whatever scene was being pre trained the motion picture the three stooges were never mentioned by name they weren't used in the title they weren't used to market  product they were just in the background and that was the distinction factor here with the point is doing is using the distinctive marks the logo the face paint the characters to actually profit profit and identify the defendant had in that ultimately they could have acquired from somebody has a fundamental problem the publicity rights for many years there have been no grant of right by them to anyone what you have was just a plain white box that says in times new roman a factual description of what's inside the box is it your allegation that that the parlous focus on a portion of the injunction that speaks of removing from their premises any portion of the footage from the last concert performance how is that sustained by a trademark cla what trademark is involved in the footage from the concert well again the again this is a unique situation where you have the characters which are this is a trademark item and in fact it is that it is not just the performance of the band but in fact the band's actual in visual image the trademark characters that are being exploited as part of this video and that's what would constitute this that we're putting the part that what's on the cover and in the promotional material who constitute the trademark violation that that is not just because of who this band is and how they market themselves it just isn't just a bunch of songs on a video you actually have characters that are being performed and those characters are trademarked and those and those care in those those those uses are unlicensed  our situation but moreover and i think this is extremely relevant to several of the three mark arguments with respect to our good faith there is no dispute in the record of our who own the copyright metropolitan since several times in the record at one fifty one fifty one and there are other places as well where they say we own the copyright in this footage and we are licensing this copyright to you and so there is no dispute and will they also say that you're going to have to go out specifically founded an arts situation where there is an underlying community community of product like a book or a video that the argument that that's special somehow just doesn't fly you say the problem of this argument according to special treatment treatment you communicative products is that it causes them lanham act to conflict with the law copyright which addresses that subject specifically also comedy through the is very specific about why the face painting in the actual copyrighted performance footage cannot be the basis of a lanham ass claim there they were asserting that the names the characters the likeness and the overall act of the three stooges was a trademark and the court found a sensibly comedy three is arguing that the clip it issues falls under the protection of the lanham act because it contains elements that the in other contexts might be smite service trademarks have new line used likeness of the three stooges on t shirts which is selling how many three might have an arguable point for trademark violation but we will not entertain this expedition of trademark protection squarely into the dominion of copyright law to allow the lanham act coverage of a piece of footage taken directly from film by the three stooges there's