what extent the common english noun entrepreneur which is without the senate hasn't already noted by this court can be appropriated for commercial use by business enterprise and have already determined that e m i me the publisher of entrepreneur magazine cannot appropriate the word entrepreneur rather trademark law allows e m i only the exclusive right to use the trademark entrepreneur to identify the products described in its registration social to the subpoena all are the issues of mandate law of the ca respects the your colleagues on the prior panel we managed this case with the exception of the issue of infringement regarding the print publication ri each one of the court very carefully standing on this record well i think respectfully disagree with that with respect to some of the issues that that was included with respect to many like the question that that leaps off the pages of the prior opinion to me why was the court the prior panel go to such lengths if its real message was only that you know there are tribal issues the fact that really preclude the grant of summary judgment here because what the party panel did is quite different than that and typically thought i read opinions reversing summary judgment on the because what's your best case the sense that i understand your argument from your drawing implications from the prior but if you're really saying that this panel is prohibited from doing anything different from the other panel because they made judgments what i'm saying is this panel has to review and i believe under an arguably mixed standard of review but predominantly under the abuse of discretion standard this panel has to review what the trial court did in light of the analytical directives that were contained in the prior published opinion act and what the trial court did with respect to the remedy and that this is what whatever i think the best indication  court with the prior panel did your honors went further and usurped the remedy in other words fit the prior panel didn't just of just the firm the finding of infringement with respect to the pretty publication the prior panel said here's what you do with it we affirm the finding of of likelihood of confusion and infringement on the printed publication but here's what you the trial court are to do with that conclusion and that's where i think the biggest sign is that your colleagues on the prior panel had something different in mind and what e m i is arguing here because they did not only took the time and effort to go through all eight of the sleep cra record kind of wrong on the strength of the mark well because the prior panel ruled that the mark was weak for a number of reasons starting with a long talk the longer you lose me to i mean i see this is a simple question of magazine and its advertising those were both addressed in the last declaration that was before the court on summary judgment the passage read a moment ago by judge thomas indicated that e m i would have an opportunity at trial to show greater strength that left only one way to accomplish that and that was to show public recognition or consumers association with the mark and there was no against me no that's not correct you're trying to the reason is because the prior panel ruled that there was an infringement and they ruled there was infringement based on among other things evidence of smith's intent if you  evidence of actual confusion of the great now it's no matter how i might spin that i don't think i could spin that as a ruling in his favor all i'm saying is that the that the prior panel said we're not ruling in noun that needs to be used it can be used under the doctrine of fair use by others in the marketplace to including smith so to me the message that i think speaks volumes from the prior panel is that  panels that ok we have evidence of intent we have evidence of actual confusion and even with that we think that the remedy needs to be quite fully and carefully fashioned to allow smith to use entrepreneur illustrated in a way that a voice likelihood of confusion and that is very harmonious with the prior panels ruling that eleven forty eight jets rymer of the prior published opinion or your colleagues that this approach takes into account the fact that consumers may well recognized it's mr smith uses terms that include the have an interest in preventing consumer confusion there is also a broad societal interest it's preserving common useful words for the public domain we do not want to prevent the commercial use of the descriptive word scuse me descriptive word to name products as straightforward names are often the most useful identifiers and absolute measure of the lateness in contrast would discourage the use of descriptive words and marks the words the very  knowledge that well the words fair use are not explicitly used but as we pointed out not only not explicitly is there not use that all well neither does the statute use those words judge tried if you if you look at the statute in  pretrial order or your approach in the trial court right and that was our the point we've made is that you don't have to invoke a word scared to use to invoke the doctrine of fair or use and it's obvious to me without using those two words fair use that the prior panel is addressing just that the very use of the word in the english language to describe whatever it is  the other a provision that i would point to is in the conclusion section on the last page of the published opinion prior panel said although in my has the exclusive right to use the trademark entrepreneur to identify the products described in  does not allow e m i to appropriate the word entrepreneur for its exclusive use the descriptive nature and common necessary use of the word entrepreneur requires that courts exercise caution in extending the and the district court should do so as well and right above that your colleagues on the prior panel were saying that you can't have a situation where a trademark owner is removing a word from the english language you combine that with the remedy that the prior panel articulated which they did not have to mayhaps another thing that speech loudly to me the prior panel did not have to fashion any district quarter office and so we have to examine it on a different was a different standard overview i mean the inference a strong draw to your favor on summary judgment it's a very different review so i think you're better off oka saying on what the what the just recorded here and arguing why the district court was wrong under our standard of review which goes the other way on nights very deferential to this point well one of the things that i believe the district court did wrong is it's  dot com and entrepreneur and so you know the fact that the trial judge enjoyed use of the word i think not only doesn't it harmonize at all with with the message from the which i know you to read we addressed it the one witness the expert witness virginia man that they produced at trial to offer opinion testimony on the street if you she readily admitted on anyway your time's expired counsel thank you very much i know that you didn't reserve and still hear from the other side wordsmith summary judgment on anything so i agree with your honor's point is that based on that decision you have to find the judge cooper could have ruled in favor bought from the media good with your next point let me go regarding strength of the market in the three years prior to the decision prior to trial one million users to progress to the magazine thirteen million unique visitors to the entrepreneur dot com website in the three years prior to the