good morning your honour's may it please the court i'm richard seibert for the plaintiff the department of parks and recreation for the state of california and also sitting at the table with me is mr david robinson the deputy attorney general of the state california your honour's the district court's denial of preliminary injunction should be reversed for three reasons number one the district court manifestly failed to apply the correct legal standard which is a fair chance of success or serious questions being raised and the balance of hardships tipping in the state's favor instead the court repeatedly stated in its order that it was applying a likelihood of success standard and didn't it did not address the balance of blackletter trademark law the district court said that the state had to show a preexisting trademark right at the time of entry into the concession agreement that is wrong the district court said or implied that the concession agreement had to expressly reference intellectual property or expressly be denominated a trademark license to operate as one that is also wrong  last mexican governor of california and it was juan bandini who was probably the most prominent citizen in san diego in the in the early eight hundred s but they built these structures and over the course of time the structures themselves achieved historical significance one of them was used as a hotel at what one point in one thousand nine hundred sixty eight the state acquired the entire area of old town which is where california was born and seven hundred sixty  historic structures which were pointed out on park row sure's included on park tours and the district court did find that prior to this concession agreement that these these names and these buildings were part of the educational and the touristic and the recreational services that were offered by the state and so who owns the names is the state the state owns them by virtue the provision of goods and services they would have the right to trademark their service they are your honor and it may very well be that the university of santa clara has trademark the name in connection with hats and sweatshirts if there is no if there is no risk of confusion if there is no likelihood of confusion in the public and they have to submit evidence so that you original user of them are then that is confusion the singular test for trademark infringement is when the public associates a name with a source affiliation or sponsorship of goods in the the state it's the state's position that the state did attain the mark on two bases your honor number one through its their use in connection with the operation of a your honor the most explicit ones are contained in the third amendment to the concession agreement in one thousand nine hundred eighty one which by the way was four years before bizarre del mundo applied to register these marks and that as restaurants and it also specifically states that their activities must be approved by the area manager i've respectfully asked the court to keep in mind this is a somewhat unusual arrangement this is not your usual license arrangement where you're licensed or licensed licensed licenses the licensee and the licensee then you know goes off and does what they do no sir it's a concession agreement and concession agreements have the  manager on the site in fact paragraph forty six of the original concession agreement specifies that there is an area manager for department of par case birthright case you need not use the word license in fact perhaps the leading case on this is from this circuit it's the edwin k williams case and i apologize this was not cited by either the edwin k williams case from mr in one nine hundred seventy six you don't need to specifically mention the word license you don't even need to specifically reference the controls the trademark that use the kind of use either directly or use through a licensee in this case we have both bases we have the use by the state in includes the operation of the state park the trademark manual of examining procedure in fact has a definition for a park and tourist services were that is correct your honor that raises the likelihood of confusion with the state park i can respectfully remind the court these restaurants have been in old town state honor it was both and the participation of the owners of the restaurant was pursuant to license and they didn't you know they didn't do it for nothing that activity the state delivered on a daily basis and boatloads of tourists coming in to visit a state historic park county well we don't know that for sure but we fair chance of success and that there were serious questions of public interest being raised and the u s supreme court has had it has said in the weinberger case and it's been repeated in other cases that public the public interest is a  names the goodwill that was built up in those names through those operations in yours to the state in exchange for building up that goodwill this concessionaire was afforded the opportunity to build an operate restaurants on state property to have visitors visit a state park they were required not of the goodness of their heart they were required to spend two percent to promote the activities it was a quid pro quo and under black black letter trademark law the good will in yours to the license or to the state that permitted the concession agreement and what the state really wants your honor we're not looking for an ultimate determination on the merits at this point although i frankly i do think this case lends itself to summary judgment but that's not why we're here well with the state wants is not to have its intellectual property rights bullied away during the months this the state park for so a lot and because those structures have been in san diego for almost two hundred years perhaps more to the point the only evidence before the district court and it was unrefuted was the expert testimony of mr patterson robert patterson who's got a thirty eight years of experience in the in the hospitality industry and he declared that he believed as an expert that there would be likelihood of confusion that there would be questions raised he said why he set forth his rationale he attached the the exhibits and the district court frankly  that there would be likelihood of confusion and all we're asking your honor is that the state not have to take that risk this case has ramifications and repercussions beyond the immediate historic park although goodness knows that's important enough for san diego the state has responsibilities under section fifty eighty of the public resources code not to give away not to you have a trademark under the common law by virtue of the use registration merely gives you some tactical and presumption advantages if it comes to litigation but when david mark after four years legally through publication in a fairly obscure publication called the official visit but there was no actual notice and moreover the concession agreement specifically provides in paragraph forty six that the date the contact for the concessionaire of the licensee is the area manager for parks and recreation who is on site and it says it's the day to day contact he was never invited this licensee this concessionaire frankly the circumstances suggest it went out of this way not only not to tell the state but once the marks were registered to actively conceal any knowledge they never used a trademark or an r in a circle designation on their on their menus their brochures their websites even though they did for their other trademarks when the issue of ownership of intellectual property came up in two thousand and one at a meeting of state concessionaires with the department of parks and recreation this concessionaire s a three page letter which is referenced in the record in which she vehemently object it to the states using names as intellectual property but didn't mention that she had gone off and registered the ones she had the first time this actually came to the states knowledge was when this concession arum lost the bid and then this concession or turned around and basically said well you know what i registered the names and i didn't tell you and i'm not taking them with me and i'm going to use them outside of this a store of park where california was born for the first time in almost two hundred years and who cares if the shopping cent number one the wrong standard was used and at the very least the district court should be asked to play the right standard number two comprehensive misstatement of black letter trademark law number three ignoring the equities in this situation in the claim or the conduct of this state concessionaire if there are any further questions or comments or honors like to thank you very much for your patients thank you thank you trademarks in addition have become incontestable which radically reduces the types of challenges that could be asserted against his art on windows ownership i would submit to the court that there are t clear ways to affirm the decision one relying upon the deferential standard river review to be given at this preliminary injunction stage and the other if the court were to reach the merits issues at all simply have not shown that the court below applied the wrong legal standard or made any clear error of interpreting the factual evidence with regard to the narrative analysis the only two permissible challenges given the incontestable status of the trademarks would be fraud on the patent trademark office and the application of the trademarks or prior continuous use of the trademarks by the state continuing from before the date of registration up to the present day the plaintiffs haven't come close to meeting the burden on either of those points in fact it's our position they abandon the first argument the fraud argument is not outlined in their summary of argument in their table of contents and there is no discussion of the standards that guide a fraud on trademark office type of argument in the plaintiff's papers with regard to prior continuous use that argument we can down entirely to this novel and unsupported assertion that the concession agreement which is silent on intellectual property rights somehow operated as an electoral property license says that after thirty years of effort by the defendant the state can turn around and say aha you may not have realized it but you've been working for our benefit for the last thirty years and you have no goodwill in these marks that result isn't supported by the evidence by the mom or by equity the other points of late have been covered in our papers i'd be happy to respond to questions