yes yes but but a different case altogether it's factually very very different the if you look at the summary order of the of this court we see that in foot no one for example the court is confused as to what are the where or is this a product line case where the where did the accused products and it seem to be factored into its decision this is very different case because the pleadings are different and they're very spoken and specific and are focused on a specific product and it's matter of fact the southern district and that's another factual distinction here is that we have this expert you dish all opinion from the judge roman in the southern district that found that this complaint passed the motion to dismiss almost all of the issues required for pleading a trade dress an infringement case except for the fact of aesthetic functionality and even under the inward test which is a test for utilitarian functionality but the court also found that that we have pleaded speed specifically the meets in bounds and the dimensions of our trade dress and that we're focused on a specific product another important point difference between this case and from boy is this is a copying case from boy it was not when you take this specific we are alleging and we have say in our in our briefs that we are focusing on th specific trade dress elements and those elements are specifically copied and the case law says you know copying is an indication of distinctiveness so so an indication of secondary meaning so there's there's a there's a lot of factual issues thank you ok back to my presentation so basically even though the trade dress law and the cases that we were all looking at talked about the issues of trade dress protection and that it should not be exclusive in precludes civil competition there's very little guidance as to the pleading stage in a complaint just how do you plead that it's an issue of fact how do you say that there is no competition that we are not precluding competition we say that in paragraph eighteen of our complaint that these trade dress elements although we very precise are not necessary for the advocation of a small on in this case so therefore opening the competition to have another type or and a different r of that part and so we're saying that this language would be acceptable should be acceptable to alleges that it not functionality now the only case that we found as a pure twelve  six motion to dismiss case which we don't talk about at nauseum i guess in our briefs is the visual impact sources athlone case another southern district case which in which trade dress infringement was alleged and this complaint was found to be sufficient it in that case also like ours all of the trade dress elements were defined as terms of aesthetic s the court found that it sufficiently pleaded non functionality the language that the trade dress elements being a static were not necessarily for the function quality or whatever of the product now we've we've completed that we've pleaded that also in fact our pleadings are exceedingly similar i don't all of the comparison is point out with this case there are two differences in the cases though the one difference is we have concluded in the language of paragraph eighteen of our case that the specific elements are not necessary to evoke the swan and therefore we argue on page eleven  that this opens up competition for alternative designs and alternative designs is part of the factual rendition of is there actual preclusion of competition in the market the existence of alternative and the elements can be used to define a swan and look like a swan however it is not an anatomically correct swan if we were claiming trade dress in an amateur comically correct swan then i would agree that ok we really can't do that there are a lot of ways that tori's flotation devices can resemble a swan but have different specific trade dress elements than the ones that we are asserting  the other difference or the main difference between the visual impacts case in our case is that they have included a statement in their complaint that we have also moved to allow to mend our complaint to add and basically that statement is what we were provoked promote is iow peace exclusive use of i o p s trade dress will not put competitors at a significant non reputation related disadvantage now that was in paragraph thirty seven of the complaint and visual impacts that did not form part of the judge's decision in that case these are all in our appendix they would use judge in view of the that description of the trade dress without even the furring to this said ok this means not functionality so what we're saying is we can do that here we can say we have our language goes beyond what was provided in that opinion but in the alternative we asked the court and we specifically move the court on page thirty five of our brief for permission to amend the complaint and add the only language that we have found that provides sufficient allegations a factual allegation that this is a statically non non functional now i'd like to just for a moment then talk about  the cases that support her making this motion now and we probably cite to the city of pontiac policeman environments case which is a case very very similar to the extent that  a complaint was dismissed without at with prejudice but without explanation as to the prejudice on the footnote seventy of that case the courts cited the panther partners case saying that when that you dismiss with prejudice without reason that the review is a do novo review now the does not appear to have been a motion in the lower court for leave to amend so it's not a case where we're deciding that by abuse of discretion whether that leave was denied or granted but in the city of pontiac case we note that the court entertained and considered whether to  grant leave to amend that complaint but it declined and it declined for the reason that the appellant did not offer any new legal theories or cases  facts to support making it a mention to make an amendment was i guess would make it futile but we are not like that we are offering legal support and specific facts and specific pleading that that's how we give us all the differences between the two cases was he not correct yes he was not correct your honor this is a trade dress case based on trade dress and the trade dress elements that they articulated in their complaint sunny life in paragraph sixteen in fun boy and then record the decided on over in this case in this cause no it was mostly on that it functionality but there was but they are related your honor and there are certainly were findings and both the district court and the fun way court which will be relevant which are completely relevant to that should we decide on the basis of overbroad throw them instead of functionality no sir said the functionality is a very good reason to dismiss this case as well as collateral estoppel because in our case a predicate basis for each and every element but if there is no trade dress then each and every one of the complete claims in our case must fall as well because if there's no trade dress then there is no trade dress infringement on fair competition and the other the other different various claims that they say are all based on having a trade race if there's no trade dress there's no trade dress and we should all go home as to the difference being that copying first of all there is no evidence in this case that there was copying we actually don't know from the evidence in this case where each of the parties got there got their difference ones they may have just bought them all bought them from the same factory in china because we never got to that point and we don't need to i will point out a very important case a similar case from the eastern district of new york bubble genius which i'll talk about if we get to the set of functionality issue in a minute but that case said indeed the program the value of evidence of intentional copying is particularly limited in cases involving product design since the copier may very well be exploiting a particularly desirable feature rather than seeking to confuse consumers as to the source of the product  know i'm sorry that was in calif when in fisher wish company about it wishing dolly apologizers out the bubble genius case may i go to a study functionality  me on that yes they are very similar yes but make a difference no absolutely not because with a trade dress because once you've identified a relevant market for for a trade dress pull swan's  that would put competitors at a significant competitive disadvantage you can't carve out a very sliver thin exact copy within it which the trade dress covers and that's because trademark is not meant for that trademark the  infringement of trademark is a likelihood of confusion likely to confusion under the polaroid factors is quite broad right it looks at all of these factors to see whether there's a likelihood of confusion between them in let's face it all of these swans look various companies look pretty much alike i think there probably is a good argument that they're all likely to be confused with each other and so if one person has the trade dress they're all going to be likely to be confused the reason the second circuit is so wary about extending trade dress to product design is because there is an excellent way to handle these things for example patent law and patent law you have the claims which are precise and then you have to look at the accused device and does the accused device have each and every element of those claims by literal infringement or a doctrine of equivalence you don't have that at all in in trademark law i don't know how the courts around the nation would be able to say ok there's a trade dress that is the competitors need because it's a static lee functional easy to be able to make a swan into a pool float but this exact one isn't covered by it is a trade dress it really can't work and that's why in the european court we aks we the second circuit exercise particular caution when extending trade dress protection to product designs and also that's corret unlike patent and copyright which bestows limited periods of protection trademark protection is open ended it is essentially for ever the on the issue of aesthetic functionality remember is that its functionality is whether the look of something would put competitors at a significant non reputation based disadvantage we have a very close case the fun boy case although it was talking about a six different issues talking about the over breadth of the description it answered our question it said quote in our view a swan shaped pool float represents the type of design choice that is almost invariably intended to render the product itself more useful or more appealing rather than to it then rather than to identify the products source the supreme court also had a very similar statement in wal mart against some mara where they said even the most unusual product design such as a cocktail shaker shaped like a penguin is intended not to identify the source but to render the product itself more useful or more appealing if the product is useful if it's an inflatable swan which is in the public domain and everybody has the right to do it then the competitors will be at a disadvantage if they can't make that at least under trade dress law patent laws we can look at copyright law we can look at but those have very special protections to make sure that it doesn't go over leapfrog there's another case from the eastern district i mentioned it before bubble genius which really i think is our case as well that the plaintiff tried to allege trade dress rights in novelty soaps made out of the periodic chart of the elements something which exists and i thought it would be fun to have phosphorus ph a little soap shaped like like that square and that the court said in really something that is exactly this case competitors in this market would be placed at a significant non reputation related disadvantage if plaintiffs had exclusive rights to produce and sell soaps that mimic publicly available periodic tables if you look at the over the breadth of the trade dress claim in this case if competitors were precluded from float with a bass and neck a face which they say possibly resembles a swan wings a tail and swan colors they would be at a competitive disadvantage because of the product they want to make not because of the party that originally put it out the fun boy court also and helped answer this question about the breadth they said that trade dress would encompass any word shape pool float with even even a passing resemblance to giants one that bolsters judge ramon's holdings the plaintiff simply described the basic elements of a swan that floats on water readily available in the public domain and they also said that they'd be capable of successfully challenging just about any iteration of an inflatable swan really these things all have to look alike in fact we know that they sued three different parties with three different inflatable swans the fun boy swan the sunny issue that mr wembley brings up of about visual impact he seems to be getting it wrong he thinks that he can cure this by throwing in a conclusion that it doesn't  significantly impaired reputation based it doesn't provide a non objection ban advantage he needed to do much more than that in this case he needed to actually put facts which would explain why my client wouldn't be at a disadvantage and he didn't do that but he can't do that  and the last point i'd like to make in my thirty seven seconds is there is nothing wrong with if they have no trade dress there is absolutely nothing wrong with copying the traffic's the supreme court in traffics said traitorous protection must subsist with the recognition that in many instances there is no prohibition against copying goods and products copying is not always discouraged or it is favored by the laws which preserve our competitive economy professor mccarthy you know a leader in the in the field of trademark law put it a little bit more simply it must also be forgotten that there is absolutely nothing legally or morally reprehensible about exact copying of things in the public domain thanks very much thank you reserve ok number of points first of all we have not seen any case on a static functionality where they found the market preclusion without factual discovery and fact if in the case  courtney communications the fact this is you can't discuss determine that issue of market preclude exclusion on the pleadings is a factual issue the question before the court is how do you plead that  even like christian louboutin that case talks about what's more generic than the color red in the fashion industry nevertheless the court there this court found that when you couple that language with that trade dress red sole with a contrast being upper part of the shoe that there are trade dress rights look at wallace international silversmiths about the baroque designs of a spoon which is we find this is very very interesting the court this went on to discuss them that these baroque designs and elements were in the prior in the public domain long before wallace international acquired them or put them in their trade dress but at the very end of the case they said how ever if you found a specific design that you can show secondary meaning that might be protectable and that's what we have here let me say what what what we say i just just very quickly what we what we say in our reply brief sunny life incorporates not just any swans any swan bill but style animal elements exactly the same as aisle piece not just any border of a swan bill but one with styling exactly the same as io peas not just any ice one which they could do this a number of ways but one with the same shape color scheme and connected to the aforementioned border exactly in the same manner and the list goes on i refer you to footnote four on page eleven are reply brief with regard to the supreme court and the the cocktail shape the penguin with you in the shape of a cocktail that's all dicta doesn't say anything all america stands for the case the proposition that there is no inherent  distinctiveness in the design of a product that all has to be proved by secondary meaning and that's really where we are even a generic product chand be found to be protectable on the finding of secondary meaning which is an issue of fact and we have pleaded all of these in our second amended complaint and the only thing that was missing according to judge roman who agreed with that essentially was the acetic not functionality issue thank