and why don't we take the argument with respect to the merits first appellant and i probably and then we'll have the argument with respect to the fees appellant appellee right ok your honor that's fine and i'd like to reserve one minute on that copying but identikit hallet of nonfunctional items can give rise to trade dress so tell me what you're using copying or are this identical replication such that the overall exclusive use of multihulls catamaran while on your website you have photographs of monel hall boats and you discuss the availability and you written materials at the website of both multi hall and lionel hall both so i don't it seems inconsistent with making the trade dress argument you're making lawyer honor i i don't are you speaking of the current website or the website at the time of that i can cite that saleable in the papers because i i think it was a reference to both models of boats and claim and the that's the most important aspect of the trade dress when there's really look i look on their website and i say oh this is fair wins is that right yes describe like using boats and finally a teaching curriculum and soliciting a student review sounds like you're trying what is your impression that i was supposed to take away from your complaint about what thier wins how how fair winds appears in public or to the public it's really through the website your honor i mean they even took testimonials that was the allegation the complete testimonials from students who took our course and posted them to their website they used a web address that was virtually identical to ours save for one letter the virgin islands sailing school dot com with one s rather than two but you're saying that someone would look at that and i'm talking about that the clicks case because you're relying on that right but you know there it's the overall impression you walk into to one place you say oh oh oh this must be x and in fact it isn't but it gives that such the dress area you're on or you can't use this adam iced approach that the district court and and say well this is functional that element is functional that it's the overall combination and the number of circuits has said that the second same notion this this atomized approach and said no you don't look at each element of the business men even the poor haul you could say the placement of the pool tables had a function  oh i'm i'm very confused about what it is non functional what it is that we can look to clearly say there's a trade dress violation well your honor do we have to do that at the pleading stage at the r thousand and ten u s district lexus four six nine five five a two thousand and ten case and he held that the look and feel of a web site can constitute a trade dress protected by the website the use of websites as a marketing tool and as a way to basically make an identity for your business this is this is an e it fairly new form of intellectual property emphasized that you know the law of trade dress he thought was uniquely suited to being adapted to to protect this new form of intellectual property and i  at the overall impression and be you know there has been a secondary meaning and it's distinctive and therefore you you look at that you say ah that must be fair wince because you look at it it acquired secondary meaning it's distinctive and you know this isn't fair wins it's somebody else but they're they're trading on your trade dress much like the clicks the impression and what i sense from looking at the two websites is that's not what happens when you look at their website where you are but again it is this an issue to be decided at the pleadings say ok oh that's a valid point i mean we allege that that that they were that they were copying our web design that are part of your trade dress or you say are part of your trade dress including the use of boats and the curriculum and the soliciting student reviews it cetera which to me just means feedback and it's very common nowadays but in any event he said all of these are functional and they are non distinctive what more do you need to rule on the face of the complaint again that the third the clicks case was was in the context anybody that's intended to confuse what the court conceded that each of those individual elements the appellate court conceded that each of those individual homes were functional and yet taken together that there in terms of trade dress what i think what can discovery do to to inform us i think there can be expert testimony or on or on the similarities that are important and to expert testimony are we really talking a song of the jury is supposed to figure out suppose i'm the functionality questions that you know that that is something that could be addressed by at the testimony but i do think that you know that the fact finder is going to have to look at the website side by side there might be some you know perhaps that you know expert testimony could come in and i surveys of customers in confusion whether there is a palming off or a passing off as we contend in mimicking that website let's talk about the distinctiveness and secondary meaning because those are necessary ingredients how i think how have you shown that how can you show that even in discovery when you haven't really plan well your honor that there's that the fact the ten factor test and the eleven factor test i think there's a lot in fact a test for confusion which wasn't reached by the district court in a ten factor test for secondary meaning i mean these are tests that are not apply in the pleading stage we don't have to plead each of those ten factors in order to survive a motion to dismiss this to me this is where the court jumped the gun where the court almost treated this and as a motion for summary judgment it basically said trade dr because they're functional and all and nearly everything you can say even about the website promotion and identity of the business you could characterize individually as functional if you're taught yeah you could i was just going to say that  website is functional you don't disagree with that you know you don't disagree that a curriculum is functional you know you don't disagree with a student of use being functional that's the back but you say collectively however this is your trade off i agree with are only a certain number of components that one can advertise as trouble providing if you're a failing school the fact that teaching curriculum you know you're both going to do moto you're but going to be multi hall you're again then your honor i think you're saying that any school could not make a claim for trademark or excuse me trade dress infringement the berlitz language school could not make a claim for trade dress in french mint i don't think the law goes that far and i think the i've mentioned the three to another case a six circuit case rejected that adam ised approach that with all respect i think you're focusing on your honor and that i don't we hear from you on on republican ok thank you and  the allegation regarding the website they were there were three the first song is the similarity of the website mean right i'm going to take one step back and say that fair when sailings primary website address is fair when sampling dot com my clients my client also uses a vi sealing school dot com as a website if the name of the website were implicated we would have a trademark infringement claim that was not  hurt me i'll just read it so we have a reference point thanks in breach of his contract with air when a fart did not keep the information he learned during his tenure with the company confidential the similarity of the operation of this is and fair wind is immediately evident in a cursory review of the website the marketing is identical the teaching particular is identical to teaching itinerary is identical and the same procedures are used for students feedback this is even uses pictures of their wins votes on the website so sailing lessons and charters as if it was there when fairly did not authorize use of the pictures of the boats by does for anyone else there is clearly competition between visits there when and i'm not i'm not certain that there is any other way in which the website is used that could be argued that it's part of the trade dress i would agree with your hon dealt with by the u s supreme court and clicks billiards dealt with by the sixth circuit in the context of services it's still the overall impression the clicks billiards court was cited by my opponent for to address their failure to plead the non functionality they said all are functional elements here they considered functionality of their albums credit teaching curriculum but except for and said we didn't plead not functionality but we didn't have to because all these functional elements combine to create non functionality the problem they have relying on clicks is clicks as trade just is appropriately directed to deals with visual elements it deals with the look and feel the a static so if you will when you walked into a clicks billiards hall fairwind has failed your hono graphics my client's website i v s slate as yawners with respect i've looked at both of these websites in the context of this litigation my client has a much more informal feel to their website they use a lot of families snapshots they use very bright colors and for lack of better term i would say fair winds website is has a more sophisticated look it's clearly professional photography but the colors aren't the same the graphics aren't the same we don't know that at this stage though it's of the pleading stage yes your honor we don't we don't know that so should the court not have just waited and let this play out and look at the websites and have that extra information in order to decide the case i would absolutely agree with your honor if fair wind had pled the look the feel the graphics the color of their website which i would concede would be protectable trade dress if they also managed to allege that it was  nonfunctional and haron a distinctive or an acquired secondary meaning and how the likelihood to confuse website producers of assistance to the court if they were allowed to testify as to whether in fact there was similarity or functionality or so forth theoretically however fairwinds fails to plead sufficient facts to get from to the point that they would be able to take advantage of expert testimony on that taking a step back in a completely fails  complete tapestry of visual effects design decisions they fail to do that and then they as a district court also correctly analyzed they completely failed to plead non functionality the court any other website there are no allegations as to why wired secondary meaning or otherwise correct no one here distinctiveness no secondary meaning and obviously they didn't please let me add a confusion together a group of functional tributes yes it's the visual aspects of the functional attributes that allow that plaintiff to stitch together non functionality as we see in cli order of yours that is absolutely part of my argument and the district court noted that made that finding and discussed how difficult it was to undertake the analysis that they had to undertake under twelve b six because they that it is written out your honor i believe that implicates trademark law virgin island sailing school would be i'm going argue it's a generic mark anything suggestive that also takes you to level of needing secondary meaning to make trademark claim for the use of their obviously unregistered trademark if they take a step back if they were to make this argument they would have to make the argument they haven't registered trademark a virgin island sailing school that they put together in a do facts to support its its allegation but it's not going to know the facts it's not going to know the amount of profit or benefit i mean it was it was very a but doesn't it stand up under you know probably a ball of business sufficient your honor i clearly i don't believe so and neither did the district court and all explain why defendants allegation was in two thousand and eleven as several months after my client allegedly started started business simming about's true at that particular point in time they alleged in may june and july of two thousand and eleven they filed the complaint on may eighteenth they alleged may june july two thousand and eleven that there bookings had gone down by believe fifteen thousand twenty five thousand and eighteen thousand dollars respectively for those months just because their bookings went down doesn't mean my client saw any benefit also just because the bookings went down doesn't mean it was causally related to my clients that here the economy could and did decline at that islands the hyatt case it's a very clear potential speculative future losses are not enough to sustain a claim for unjust enrichment and all of a size again there allegation was that there bookings went down they  honour's i wanted to just mention i mentioned a second circuit case we've mentioned the clicks case in our briefs regarding the the importance of looking at at the elements in combination i'm sorry the second circuit case this code is it makes a very good point you never really have certain who completed this trick or had this problem and he as he was my first question what is your trade dress what is the the appearance that you want the public to see distinct w got a red roof i can tell you what it is yeah now what what do you want the public to come away with when they see your school fair when sounds cool it's the it's the testimonials effect i think to visual effect and we think if you compare the two websites you'll see that one borrows the visual effect of ours and i isn't that all we need to allege about the pleading status is not a summary judgment motion these other cases and that the seven circuit case also very i did not say in the brief that is computer care versus service systems enterprises reported  can file a letter briefs not more than three pages as to the relevance of these cases because it's really not fair for us to be doing this kind of in a move with a moving target so within five within five days if you each would file supplementary letter priest not more than three pages as to the relevance of these cases i copies today by e mail all right thank you and i'm on the on just investment your honor we don't understand the court's ruling the court said there are three elements do a claim defendant was enrich the enrichment was a plaintiff's expense and equity and good conscience compel a return of the money to plaintiff the court suggested that the second and third elements were probably satisfied but in other words in  second element was an enrichment of plaintiffs expense how can you possibly have assessed the second element being satisfied and enrichment at plaintiff's expense but not the first element the defendant was enriched the second element presupposes no i think there have to be there's that could be independent there's diversity jurisdiction and we have to the amount counted on a matter of jurisdiction so matter of unjust enrichment arises out of a wrong if you s exchange with opposing counsel that the dismissal of the second count means that none of the allegations that factual allegations made in the second count or in the common allegations i mean there are common allegations   your honner mentioned it we can't ignore the fact that an employee went from took you as if i dismissing it you didn't take it out of the case the tortious interference i claim which is but i don't think that the breach of duty is property this is really an evolving area of the law you're not seeing that the trade dress violation resulted in unjust enrichment and that's not that's not the hero it's a separate claim there's some overlap your honor but i think that we local law claim unjust enrichment your honor that is a a a con i thought you were saying there's an underlying local law that provides for a duty that will and that a statutory violation your honor we're not alleging that but but there restatement third of restitution and unjust enrichment and they're treated synonymously unjust enrichment and restitution i mean the seventy sections it is an extremely broad concept and and between the the local law and the federal law claim in accordance with your honor's opinion in the figaro up here that's fairly clear isn't yes i mean that that the court clearly erred and did not follow your honour's opinion and even have to allocate it all correct there's the inner twining theory that but i are you so you saying that he could have awarded them under the virgin islands law  he could conceivably have awarded fees for litigating or defending the local law claims only under section five forty one unfortunately they really did not argue for apportionment and section five hundred five forty one they gave the judge no basis they may have waived an argument if there's a remained on that issue but even if you review their time records your honor that are part of the supplemental appendix there is no segregation not going to request a portion they're going to request the whole thing correct they're going to say it was exceptional under lanham and we got them under the law i was well your honor i was hoping that this court would rule as an you know reject that affirmative grounds for affirm as a matter of law that on this record this is not an exceptional case and i think it's telling that in our may first letter brief to the court on the octane case  sotomayor noted that you know you can get you can get fees for culpable conduct so you don't have to say that that's an exceptional case so are we really under octane and securacom is pretty much pushe think the key thing in that case is that the court mentioned the third circuit mentioned this other case a district court case that is cited in our letter brief that says you know it's rare for we send this back or do we decide for ourselves i think you can on the lanham act you can simply reject outright the notion that this was an exceptional case send  dismisses action without prejudice the defendant can be considered the prevailing party for purposes of the court rule and cost but i don't believe that's true a fight section five forty one is that your honor well as i had a case with that i guess that's that i guess that's for the district court to decide but with right to that i think some guidance on the issue that you know that the figaro up applies and that there should be if the fees on the federal i would be getting the federal claim  which was the bulk of the briefing your honor and the bulk of the court's opinion that the unjust enrichment is dealt with in a couple of pages we think that the other there has to be some basis in the time records otherwise it would be arbitrary for someone to come in and say oh well there's two claims you know how about one half that there's got to be so i think there should be some instruction to the lower court and we don't think that there should be fees for unsuccessful motion that would happen consider that if we if we decide this case is you urge which is to say that this is not an exceptional case this is a trade dress fight that was resolved with the litigation was not that exceptional was not they are for the claim for local litigating local law claims if there is some rational basis for segregating the time that they spent defending the local law coin are you saying they should across appealed requesting allocation possibly or they should've made the request in the lower court in the first instance they if you look at the brief all they're not going to request that you're going to request a no they're going to ask for the whole of all x they asked for the whole ball of wax under the lana man and then it almost as if i footnote by way of footnote they said we're also entitled to the whole belt ball of wax under section five forty one that's where i think they ought to have told the court  frankly we are only entitled to fees for what a gating local law claims and here is how we propose to apportion that there was none of that well there in time of the fees in the low in the in the district court for the one in that case  because they knew that their time records would not support any at ability to segregate as between local law defense and federal law defense for section five forty one purposes their briefs put almost all their eggs in sotomayor talks about exceptional in the context of the brooks case and says that in that case under section two eighty five exceptional is  when there has been some material inappropriate conduct related to the matter in litigation such as willful infringement for an equitable kaunda in procuring the patent misconduct during by discussing judge said in my ars discussion of brooks furniture in octane and she specifically rejected and i'll quote we reject brooks furniture for another reason it's so demanding it would appear to render section two eighty five super fair wind that i believe supports is one of the elements of the one of the facts that supports a finding an exceptional case here when has been involved in lanham act litigation before i attach the sole system plaint to my motion for attorneys fees they sued solstice sailing for lanham act trademark infringement claim now prior to suing salsa sailing they sent a cease and desist letter which is absolutely standard practice i've done a lot of i q litigation i have never another fact i'd like to point the court to i think that certainly militates in favor of finding an exceptional case second to the complaint so any time somebody files a complaint without asking for a cea let the district court assess this i mean we have a new standard and if you're saying that the feds hundred sectional if we're finding of these things might be relevant when we let that the district court do as a fact finder basically find court's ruling on any basis i argued on behalf of my clients in the lower court have already have a system that was found and was presented to the district court and this is total this is totally out of the record so we can't just kind of rubber stamp on something that we find because we don't find facts will correct the facts i'm citing all part of the record ok second with regard to this case i would argue it's a frivolous case my client's perspective was purely as you competitive they sought to force my client out of business and frankly if my client had not been of means that's exactly what would have happened this is been an extensive as i'm sure your honour's are aware in expens litigation but my client thought was important to defend this case to vindicate his rights and he's very fortunate to be in the financial circumstances to be able to do that suv several other are you should you have cross appealed but if you were wrong lanham act that the court needed to allocate the time spent on the her child's cases absolutely not your honor this court can affirm the district court ruling on three independent basis first this court can affirm finding an exceptional case and a momentum act and you pro forma get fees under five v i c five forty one would constitute prevailing party for purposes of section five forty one i believe they imply adly made that finding your honor in creating virtually all of the attorney's fees that i requested and that your honor was discussing with opposing counsel the fact of a voluntary dismissal with prejudice and whether that you are prevailing party as a prevailing defendant when plaintiff dismisses the prejudice in that way this is been discussed both by the virgin islands paoli and indicated that it is this will prejudice gave my client prevailing party status and then they actually went on in that case to discuss whether a prevailing defendant got their fees under five forty one figaro case pretty clearly you have to allocate well that greed i think inextricably intertwined i mean if there's a bad faith claim that's a claim under version islands law and a bad faith claim that's a claim you know under federal law then i think you know i would say we first filed a motion dismissal there the district is going to have to make a judgment was it and the strength of the of the trade dress claim i mean they're going to have to book but something's something's got to give they got to come up with a number basically but they certainly in awarding not address lanham at all did not mention it and the exceptional so that it's going to have to go back for that purpose at least as i noted earlier your honour's do not have to reach that result but my client would not argue against the district court making design the lexus site is two thousand us desk lexis fifteen fifteen it's an it's cited and a letter i just wanted to point out that that case was cited approvingly by the secure com court and it deals with th prevailing defendant and points out that it's rare to find an exceptional case at the twelve the sec stage that the record simply isn't sufficiently developed is normally done after a full trial on the merits which is what happened in the secure con case there were actually documents of before that the district judge but why i believe that you know showed the improper purpose the defendants  and reject that and really remove it as an issue in this case if it's going to be if the award in my view it should be under section five forty one but with the appropriate apportion