you may proceed thank you your honor this case is a classic case of reverse trademark confusion it it's we cited the ameritech case below as the predominate authority on this and in the merit tech case it was there to case reverse the summary judgment merely on the fact that the evidence showed that there was a evidence once it was shown that the market was saturated by the defendant and that the it overwhelmed the plaintiff the sixth circuit reversed the summary judgment motion and then went on to talk about a lens in which to look at the factors the individual factors in the court below did not use ameritech at all even though that was our principle case we cited page nine lot of moving parts to it but this was mentioned on pages nine and ten of our brief and waivers not even remotely in order here but the mark is order a link or a link for order fulfillment services we have incontestable trademark registration and in the case of reverse confusion for example in the  user in this case u p s is the dominant mark with the sixteenth most well known brand in the world forty two billion dollars they value the brand that they sell fifty eight billion dollars a year  they give away our services for free they they tend to in the course here we we showed that they said trade of the market with over two trillion uses of the mark relative to the services on the internet the internet is a very significant portion of what we do and once you p s started using the market the internet as a source of customers and prospects for us just disappeared we were to zero where previous to that we would spend a certain spend and get a certain response but in the judgment that there was no likelihood of confusion no district court ignored the ameritech standards as i mentioned they district court ignored facts that we presented that supported those standards in this merely on that but the court also apply the wrong standard here they apply to polygamy junction standard versus summary judgment standard and i believe the j p l case that we cited oversights that and would control although it's coming out tonight circuit it defines everything in reverse summary judgment and on that element in time this position live rest upon the likelihood of confusion and if if if so where did the district court go wrong in this decision well there's that the elements that are that it differs from for confusion and rather than stealing the seniors is good will the junior user saturates the market the junior user of the overwhelms the senior user the public comes to assume that the senior user all ends the mark that's the neutral promise we provided evidence on that they never responded to that the judge did not did not comment on that even though that was the mayor tech standard then you go if you need to leave go to the factors how much weight is to be accorded to that factor it's it's not so much a factor it's a foundational element and one thin in ameritech they said that foundational element was determined that they reversed summary judgment and then they looked at the factors through that lens to support now in the in the district court for example with regard to intent registration before right from the get go and they were told by their in house brand manager that they couldn't use it they saying it is owned by u p s is a classic reverse confusion they didn't have any attorney advice through this process they didn't make any mistake that this was not an accident this was not inadvertence they intended to take the mark knowing full well that we we had a registration we told them that they couldn't use the mark and they continued to use the market going full bore you said the judge quest flied this the legal standard of area junction he did not apply summary judgment standard on page five his opinion he says it's it's section two summary judgment standard he released purports to apply the law of summary judgment as he does it not he states the standard and then he doesn't follow what he just don't like the way he balance the factors or whatever well he didn't you told me apply the wrong legal stand i don't think that's correct you may not like the way he law where does or does he cite the plenary injunction standers he doesn't ok there's a girl just reading that and because you don't like his decision not true the the in the summary judgment standards and trademark law you can balance the factors but you can't balance facts you can't wait facts you have to view the facts in the light most favorable to the playing to that he didn't do it i'd summary judgement standards improperly improperly that's correct ok not that he plied the wrong legal standard well when you look at it said that out of a sudden you tracked it my attention because that's certainly the reverse if the judge applies the wrong legal standard doesn't know what the legal status quo is in the in the have cation of the facts he ignored are ok you know i don't you know if you don't like the way he decided that the case based upon the facts that were presented there's there would be no difference between the pinion if you will and rich u p s and your company would come head to head where to where and where what perspective user of the services have to make a choice  and there's one element there where we are disclosed if the internet searching the internet for e commerce services is where we overlap  the u p s services yes used to be just shipping now u p s decides to go further than shipping and into our domain where we are offering handling services for for the the retail establishments that are used that are located on the internet but u p s developing websites and things of that nature and under their ordering to what they used to call of the they have at least forty seven different pages on their website relating to order of link and they were trying to take it amazon and e bay retailers into th fold with this free software that was offering services that we would normally offer to those people thank you i know your time and sound but there was some indication in the record that other companies may have been using this ordering mark and that woods if that's true refer first of all is that true and if so how does that relate to in the potential confusion between progressives use of the market and you as well they cited less than ten things that they found half of them stopped some time want the two that the judge indicated were order links and orders link which wouldn't come up in the same way on on on an internet search but the fact is that when we looked we couldn't find them in active time they they obviously spent you know significant does get rid resource to find these little places out there that we never came across but i think a denim one for the district court ignored all of the that the district court took the position that that u p s wasn't shown to want to take the good will of progressive but that's not the that's not what s intended to take our mark and intended to only mark is there any dispute is that about that i don't think so but the judge did not included as part of his evaluation oh i thought those facts are basically exists that would warrant a trial of this as opposed to siding as a matter of law i understand the zero ply answer my question but the fact that we have facts that are contrary to what the judge found what would reverse what henri judgment and allow us to try the case on those facts what are they that you want to try well with respect to the actual confusion for example the the there's a question of fact as to whether or not the employee confusion is more or less the non employee confusion we're saying that employing that their employees called us thinking that they own the mark they're saying that that's less than employee confused not employee confusion and we're saying it's greater than not employee confusion we're saying that one hundred percent confusion shut down the internet plaintiff and that was one of the aspects of this on the strength of the mark were saying that the facts in our favor show that the that the mark stronger than the mark of interior ameritech stronger than the mark of big o stronger than the mark and thermos again those are all facts that the judge either ignored or didn't didn't and certainly didn't balance in our favor and with respect to the trademark examining attorney the entire record where the trademark examining attorney rejected their mark the judge dismissed it as having no way even though every case that was cited to the judge indicated the show's like a legal issue to me is whether the examiner in the patent copyright office whether his or his  heard terminations is entitle to wait and what weight that decision is made i don't see that as a factual question i see that as a legal matter i mean you say that's it why should it jury how much weight to give to that decision well the judge gave no weight to the no you think it's a matter of fact matter of law the amount of weight if any to give to that decision all the cases that were cited by the court by them and by us every one of them says that that's a fact that should be presented to the jury that it's ost so the jury determines the amount of weight for it seems like an odd thing to do ok all right but but the judge the judge itself the judge said that he had or i could see you arguing that the judge erred as a matter of law by not giving that decision weight and then i don't i don't see how you can say that that's a jury question that that isn't the province of the trier of fact and then and then with respect to the relatedness of the goods we said we have evidence in the record that shows the overlap of the services and the judge said that there was no overlap of the services and that there and that should have gone to the jury to determine whether or not there was or overlap the services as a first as a question of fact all right thank you very much demonstrate a genuine issue of material fact instead it did not point the district court to a genuine issue of material fact in fact aggressive in its response of papers to our mission for summary judgment indicated to the district court that if entitled to yes your honor now after the district court agree that there were no material issues affect a ruling u p s s favor progress that era where there was nine and attempts to do now what they didn't do below which is conjure up material issues of fact this court should affirm the district court's decision because the district court apply at the proper summary judgment standard follow the law of this circuit regarding reversed confusion infringement appropriately assigned no weight to the trial to the trademark preliminary opinion and based on the undisputed facts presented to the district court appropriately found that there were no issues no likelihood of confusion as a matter of law turning far so our first is turning to the issue because he cited some cases that were collimator injunction cases some cases that were summary judgment cases and some cases that were on appeal after a finding at the trial court but neither the likelihood of confusion factors know the type of evidence analysis of the summary judgment standard and rather he just incorporated by reference his ruling and his opinion from the policeman area injunction that is why the ninth circuit found that that judge used the confusing factors based on reverse confusion as an initial matter the sixth circuit has not ruled on that that the likelihood of confusion analysis should be altered when there is a theory of infringement based on reverse confusion or for a confusion in the case that progressive sites may relies on this ameritech but that case did not change the standard for evaluating the likelihood of confusion factors rather and ameritech the judge there at the district court level stated that there was because the goods and services were unrelated and not competing it didn't even look at the likelihood of confusion standards whether it was under reversed confusion analysis or  confusion analysis the court here the court and thermostat however stated that they reversed that reversed confusion in the six circuit is the same regardless of the theory of infringement i'm sorry that stated that the likelihood of confusion analysis is the same regardless of the theory of infringement and that's where reverse confusion is a theory of infringement not it's totally different standard way of looking at infringement progressive in its  papers before the district court cited the definition for reverse confusion but it did not advocate that the district court modify or alter the way in which it looked at the likelihood of confusion factors because it was a reverse confusing the mark was registered and because we had located the mark after the mark in our research we knew that the market existed but we also knew that other people use the mark order link in connection with services that were closer to wh but they also knew that the market being used for totally different services and knew that the mark with was used by not just progressive but by others in the industry and knew all of those things plus the fact that order link is a descriptive mark when  decided to use the market was because it was linking orders from amazon and e bay to a shipping application that's why you chose this descriptive term as part as part of its mark of course u point that that fact in the in term and in history and that the market's not argued by progressive at the lower court it was only the strength of their market how strong it was in the marketplace that is what they argued it wasn't until it the try to argue p s is the strength of the u k s orderly mark i'd like to point out however that there's no evidence in the record of the strength of the u p s order link mark yes you p s is a strong mark but the market issue here is u p s order link and there's no evidence in the record that you p s order link is a strong mark decision with respect to evidence that p t o did not consider here we had the district court had a full and complete record looking at how the marks are actually used in the marketplace looking at how the services were unrelated looking at the consumers that were targeted by these different parties the examiner but at the trike level did not have that information all the examiner hat was the application the u p s orderly application action and said that they believed that it was likelihood of confusion between u p s s orderly market and progressive orders or to link mart but they u p s would have a chance to respond to that office action and rebut in argue around it if they could if they would your honor in this instance the only thing that we have in the record is to examine as polemic mary opinion examiners routinely reversed their opinion as they did with progressive oh mark progressive received a  is there a level through this process where there there is a difference you can see it is due to the decision from the trademark office somewhere up the or after that the after the final decision meaning after the after the decision has been appeals through the board it can be received it can receive some deference but even as the supreme court said in a recently issued case and b and b hart we're the if that decision is based on information before the board i'm sorry if this is it was made based on information before the board that was not complete meaning that the district court him or additional information that is still no weight at all yes your honor and there are a couple things about the the reason in the way that judge place went about looking at the trademark examiners opinion first as we mentioned it was pullin in the area it had not gone through the additional argument or the  level but in addition when you look at the office action itself in which the examiner rejected our application they examiner said in that same office action that she did not understand our act goods and services so in making her determination about my code of confusion looking at the block letter marks not the marks as they appear in the marketplace and revealing their real late in this of the goods and services she admits that she didn't understand the services that u were providing under the mark so that even if we worse a look at just the examiner's opinion it was an unreliable opinion based on at least incomplete and perhaps uninformed information i have one last question judge  is still to a facilitate shipping it is only available to amazon and e bay merchants so when amazon when great retailers to sell their goods through amazon and e bay once they sell those goods through those marketplaces u p s marketplace u p s order link shipping software would allow the user to imports the shipping addresses for their customers print shipping labels and mail and mail those items to their customers there will be nothing else that p s is providing in this instance thank you seeing that i only have one more minute here i wanted to address a couple of issues one being on the fact that the progressive claims that the just in that just quest and not review or acknowledge any of the declaration the declaration that was provided to  the court that was the president mr mcgovern declaration if you look at the response of grief that progressive provided to the court they cited that declaration four times only two times there was it relate in relation at all to anything related to liability the two instances in that they used the declaration to support one was to say that the mark was registered in that there was no other mark on the us a registration list that also was  that that citation was related to the search results for or orderly through google and through being and yahoo although the court did not specifically address our state that it looked at that fact progressive didn't argue what that fact was supposed to be in support of in this brief anyway in addition when you look at what the conclusory statement that mr mcgovern may look at it compared to the actual evidence that was to corroborate that statement there is a disconnect there the statement was that when you search for orderly u p s order u p s order link was the only thing that comes up that we were saturating in dominating the marketplace and what you found was if you look at u p s order link yes yes and sites related to u p s showed up in the search results but when you search just the link in this was in the record before the district court when you search for jessie order link particularly after december two thousand and fourteen u p s was nowhere to be found i see that my time is that thank you very much the questions of fact here relate to various findings that the judgment for example the judge made a finding that they stopped or they didn't stop they don't even argue that they stopped and number two on our are they still use in the market i thought that was understood that after the trademark office made the ruling that they stopped it no your honor after the trademark office made the you claim that they're still using the r i'm claiming that occurred that they they use the mark for at least five hundred eighty six days oh well ok that doesn't mean they're still using or demand out be using it today and they've stopped using the mark they haven't stopped using the market in the sense that you go on a on you go search u p s order link and you still get remnants of the use that go back to of the use is no different than using the mark ok but the judge me we're not speaking the same language here but but i don't really want you to misrepresent the record i'm not trying to do i'm not resurfacing your career i apologize if we if we can if i can express it correctly but the fact that the judge ruled that they stopped using the market on august the twenty four team they did not stop using the mark and when do you claim that they stopped using the mark we still have activity  through when do you just just answer my question that they would they have used the market at least through the middle of twenty fifty and that's what we have on the record with the expert witness all right then after twenty fifteen they stopped using the mark that's correct but they still want you want the damages for the time that they used the bark and maybe some words residual consequential damages that's correct i understand  but that's a question affect you know what when they say how long late they still kept using the work while there's no liability doesn't really matter all the judge says the judge said that there was no intent because they stopped using the market in and fourteen they they don't even argue that they stopped using the mark in august twenty fourth when the judge created that and and there's obviously a question of fact there because the way that the judge determined that the that that would be very very related to the question of a tent at least the judge made in a material fact relating to question of intent and the fact is that even they don't agree with the judge's findings so i think that's a trial issue of fact at a minimum along with the other issues relating to intent of the other issues relating to the trademark examining attorney opinion or a jury should be giving the weight to the opinion both from the standpoint of the fact that that was an attorney opinion that came out before u p s started using the mark the judge incorrectly made the determination that intent was to be viewed at the time that they thought about using the mark and there were six months eight months between the time they thought about using the mark and the time that they actually used the mark where they found out about our mark where they were they the trademark examining attorney told them that they couldn't use the mark were they use the mark anyway and they went out in a big way trillions and trillions of uses of this mark on the internet they century to the mark but from the from the national questions of fact with the the basis for reversed confusion is the lens that we argued the case they're saying that we didn't argue the case from reverse confusion standpoint we we argued the case on the basis of ameritech the judge did not look at it through the same ones the the findings that if you trademark the other one had a trademark that they were filing for in contestability that used each of them for five years there was no disproportionate as you might want to  well the bottom line here is that this is the classic reverse confusion case where a dominant mark captures a scene you just mark and