court to reverse the district court's ruling on the a pelleas motion for judgment as a matter of laws d to a police amended cancellation counterclaim and its affirmative defense of latches for cancellation and ask whether the evidence still claimed sole overwhelmingly in favor of pelee that the jurors very cannot stand in other words if a reasonable jury could have found in favor of appellant and that the boxer protectable as the real court not the jury who has the power to cancel the mark and on that basis the parties agree that it's the court should who should decide on the issue of cancellation not the jury findings of facts from the trial and here we contend that the court completely disregarded what the jury found which was the marks are protected one distinctive it was also error for the district court to rely on the dictionary definition because the distinction of definitions were not in the trial record the burden was on the appellee and they failed to produce that as evidence in the record and neither did the jury rely on that record indeterminate the marks are distinctive and also the dictionary definitions tonight show what the relevant consumers think of the marks council can kind of can we go back to the cancellation issue  and the district court allowed the cancellation counterclaim to be amended can you lost me through how that decision prejudiced your ability to prepare your case i know that that decision was made ten days but for trial well i'm just trying to get a sense of what you were already developing before that was that and then that was allowed and whether there was any kind of overlap once that momen only cora loud in within ten days before trial and that was after the parties have already completed summary judgment and the appellant had already addressed that you can solution was not even an issue especially in view of the fact my they might possibly file a motion and then you thought that of the result but talk to me about that actual prejudice as far as top preparation because i noticed that you didn't ask for an extension of time delay the trial tell me what prejudice and so we would have been able to follow the subsequent summary judgment for cancellation and the court denied that and the cancellation with respect to cancellation we would have been able to provide some evidence to show d that the bark if it's not inherently distinctive at least it's has acquired distinctiveness and if we weren't able to formulate that evidence in time for trial and and  here it's it's also been prejudiced because the court was relying on dictionary definition that was not part of the record and still in the st place we agree that the amended counterclaim for cancellation should have never come into play but the fact that it had we felt that the burden was on the appellate to prove but the mark started this descriptive but they fail to meet the burden instead the core actually have to go outside of the trial record to find out the marcus descriptive and his work here today well and ok let me just drill down a little bit more so i'm trying to determine prejudice that  of how you were army on the distinctiveness track what what burden was added that what prejudice changing certainly in terms of strategy decision for trial that expressly was silent in its summary judgment as to whether or not the cancellation was even an issue still there was no way for us to consider whether or not that should be part of this trial but for the fact that it was entered in ten days  before quickly the the problem with the cancellation is also that the jury has already found out the marks are distinctive and the district court ignored jumping to the issue of latches we believe that the delays should be measured from the time in which the palin knows or should have known that it has a provable claim from frenchmen care that the court determined that  episode though give you actual or at the very least constructive knowledge of customer confusion on to the sun no because it was just a just a passing reference about the other tentacle and there was no at the time there was no way of knowing who that pinnacle was and not to mention that during the trial testimonies seal of the of tele testified that they did not compete in that process in the bidding process and argue that some latitude should be given to the apology to assess the impact of potential infringement and the impact of pursuing a litigation fee it is truly apparent was horrified that the ad age listed in the hyperlink address back in allowing amendment of the cancellation counterclaim the cancellation of the appellant's marks as well as the lashes finding which bar appellant claims the standard on for ever  the district court had before it a proposed amended counter claim which we filed and attached to our response and the court review that and discernment that it could grant leave under rule fifteen which provides for that leave should be granted when justice over wires and has a liberal amendment policy that even allows amendments at and after a trial the  the district court noted the overlap that would take place in the issues and based on that rule that an amendment should be allowed further th circuit requires a substantial reason to deny an amendment and in this case appellant has not shown a substantial reason in in response to this amended catarrh claim they were prepared to ask for a motion for summary judgment which indicates they are ready to go they're ready to proceed  and they thought that they could prevail as a matter of law with the fact that had been developed in the case at that point so accordingly there was not an abuse of discretion in granting leave to men regarding the cancellation counter claim we disagree that it was a a remedy that was only before the court rather it was the entirety of the counterclaim in the row column case the actual  counterclaim itself was tried by the jury in fact it was tried in front of judge middlebrooks the same judge in this case and they had jury instructions on cancellation and they had it on the verdict forms that cancellation was available and that did not occur in this case and said you know judge no but i think a great judge may he said it cannot be discerned one way or the other whether the jury made that however the parties did it shows that how the case continued to flow where a an order was entered asking for findings of fact even after the jury verdict was entered an answer was filed by the appellants and it jury verdict after the jury verdict was entered and that was all before the district court and even recognizing but and that the the cancelation factors that were considered are unique and were not necessarily before the before the jury as they were not on their form there were additional issues that judge middlebrooks considered such as the length of time that it appeared on the federal federal register which was under five years and based on that he could consider whether it should have a foreign part in the st sentence any irregular i guess the  blip side of your response to judge martin's question you said look you know you've got to kind of see how this whole thing played out even after jury verdict there was you know there were findings of back and loser proposed funding back was in the law about distinctiveness but the books out of that is w in the end under eleven i mean just didn't do it on the right that that that is one of the unique aspects of this case is that we put the fifty elation out there there there was a possibility to put the entire claim in front of the jury which had occurred in other cases but in this case it's possible that it appears that the parties put themselves in a position to in is order recognizes the presumption and cites extensively on why the mark ultimately should be found to be merely descriptive  was merely descriptive rather than distinctive and he does acknowledge that he is in effect overturning the jury verdict on that portion and provide substantial reasons for doing so in that in that order he says to the extent my finding may be inconsistent with the about it i mean it's it's completely opposite of what the jury right and the reason that he found that was based on his review of the expert because the jury didn't have before it the possibility of cancellation which they were not aware of would be an outcome or could occur then i then without that the jury having that knowledge  i believe they should have the without the complete picture of the cancellation counterclaim and what could be possible they should not be entitled to a presumption of correctness but you submitted the question is the tr tied into the separate issue of the cancellation counterclaim if the because the jury didn't have the entirety of what they could consider and the options available to them and that may have impacted their deliberations we believe that the court has in the parties agreed to separate that cancellation counterplay and that's what the agreement did not say regardless of what the jury is the judge can cancel the trademark that's correct correct you know our everyone has like it's a pretty good result for your client when they including the expert testimony that brand names were low priority for advertising companies that there were already active businesses using pinnacle advertising it within the united states sophisticated that there wouldn't be any confusion due to these rd parties that they that they all family got their marks let me ask you just a quick question about the scope of the evidence the district court should or shouldn't have considered in  g this rd party use analysis i mean are isn't it sort of bound up with your contention that he was entitled to do this you know because if in fact what he was doing was looking for substantial evidence  then he really couldn't have gone out on his own and don sort of internet sleuthing right i mean he would have needed to limit himself to the record that was before the jury correct so i mean the two are kind of sort of inextricably bound up together  that is correct he the judge could not consider evidence outside of the jury what was available to the jury based on his or his your view of the case and the target on the inflation fourteen which under the in the th circuit look to the closest statute of limitations which in this case is undisputed as four years under florida law and he found that january th teen was the date at which the latches clock started it was a meeting with the central florida on a dealers association at which time the appellant was itching its services to hopefully paying them  doors association as a client the it was more than just a passing meeting based upon the record document nineteen which was an injunction motion to enjoying my client ellie provides that there was one of the dealers association representatives asked if the two were related and it was the appellant according to their pleading who was able to set the record straight this this meeting was on the one hand important enough to act as a basis according to the count to have an injunction entered against my belly but now with respect to latches is not an important enough event to have started the clock we we find that position to be untenable further the date was correctly established by a trial exhibit which was a pitch book that document went to seventy nine which provides court the court is to reject the findings of the jury i can't please or you know i think the view is that because that's the remedy under the cancellation counterclaims why that would go before finding the facts by the jury are binding to both the parties and to the court and the fact that the district court did not consider that in its analysis to pencil it was clear the court to not discuss anything about the public interest public interest here clearly outweighs any prejudice by the appellate we've produced many of events of actual confusion so in summary we believe that the cancellation was was in error because the poor fail to weigh and the jury's finding of facts that the marks are distinctive and with respect to the latches we find that the calculation that's within the statute of limitation of four years and there should be a consideration that there's a presumption against latches and not to mention the fact that there's a public interest element of the latches