to tackle that one head on and i think in order to do so we have to look at language from the gracie case which this court decided some years back which says that when the court gives the jury the power to determine belatedly the court's duty is to give effect to the verdict so the way i see this question is if the verdict is going to be reinstated how best with this court give effect to that verdict and i think we start as the court knows there are certain marks marks are actually tried during the jury trial and then there are additional marks  part of the same case it was all part of the same case your honor that the affirmative claims by kwok yet was for trademark infringement arising from seven marks those became known as the asserted marks there was a counter claim by the defendant in the case to originally in the controversy on the players complaint early on more than just the seven were in controversy but at the time of trial the plaintiffs decided to only proceed on seven because it was under speeded that the defendants were only using those other i just want to make sure what the back for a while ago is just to follow that after the court set aside the jury's verdict the court then granted summary judgment and canceled those very same seven marks and then the defendant brought a rule fifty motion the court granted it finding specifically that he did not believe there was evidence of suggestiveness he thought that the marks the sort of marks in the that were tried to the jury were merely descriptive and that so i think the answer when we're talking about precludes effect in this situation because there was no judgment i don't believe restaurant caught it would be the appropriate way to look at this but i do believe collateral estoppel would apply in this situation and i'm going to start with the  if the adjudication is sufficiently firm which is a language that's used only been then the prior adjudication will be giving a finality of effect and the factors to look at are whether or not the parties were fully heard whether or not the prior decision was tentative and whether or not the prior decision was subject to appeal and i think if we look at the the jury's verdict i think it satisfies all of those to show that the education of by way of the jury's finding on the special verdict was sufficiently firm so th mr shipper this if i get my terminology correct under the restatement of judgments this is the offensive use of collateral stop in this instance i believe it would be ok yes so what happens to the marks that  church kearney were invalid well well he invalidated all of them robots so let's look first at the asserted marks meeting the marks that were actually tried the jury i think there you have to look at to see if there's the identical issue and the judge pointed out in his memorandum of decision what he believed the fundamental issue of the underlying trial to be and he said specifically at excerpts of record seven that only the meaning of the word quote that was at issue in the jury trial that is how he identified the issue of that trial so i believe that that the issue the identical issue was already heard as to be asserted marks the meaning of the word the reason the judge granted summary judgment was because cancellation claims at least with respect to the seven you've lost so that really calling it collateral estoppel the judge admitted that if the jury found in favor of the plaintiff on the infringement case the case that the cancellation claims would necessarily have to be defeated the problem is the judge reversed the jury's finding because a judge did not believe that the marks were suggestive the judge believe they were descriptive and that there was insufficient evidence of secondary meaning so for that reason the judge granted summary judgment as to those sitting around that point but to get to why should we believe the judge incorrectly granted the rule fifty motion we have to look at the standard the standards of review under rule fifty motion is a dyno standard and we have to look at and construe the evidence in the light most favorable to the nonmoving party which is my client and we have to look to see if there was any relevant evidence from which a reasonable person might have been able to make that finding your claim is that in the ruling he quote weighed the evidence as i get it that's your primary quite well we believe sell a more importantly the judge didn't look for the existence of substantial evidence the judge evaluated the evidence he saw and found that it was unpersuasive to make that point that's weighing the evidence character ok and i believe that's an appropriate on a rule fifty motion we have to look to see if there was evidence that might have supported the jury's verdict and remember the jury was was finding validity in this portion of the case and validity can be based upon suggestiveness or it can be based upon descriptive ness with secondary meaning the special verdict form in this case did not require the jury to say which basis they were deciding upon so it could have been either one the court doesn't know the lawyers don't know and this is a special verdict form it was not  to the jury was specifically instructed as to the various standards in the jury instructions none of the jury instructions were objected to so there was cleared instruction all of the arguments that were made in this briefing into this court were identical  to the jury so they had the full array of issues before them they deliberated for two full days on this case before coming back with their verdict and there's a reason for that there was substantial evidence to support the finding of the lady first of all you can look no further than the expert reports that the defendants themselves admitted into evidence these were plaintiff's experts we had a linguistic expert professor tran who had a huge report where he had twenty dictionary definitions of primary meanings of the word coat which is the primary market issue here that alone could suffice to support the jury's finding that was something the defendants asked to be admitted into evidence you also had testimony about the primary meaning of the word coach which again the judge found not to be the principal issue in this defendant the defendant they could have called it soup they could have called it broth they could have called it anything but calling it exactly what we're calling it which we believe is the suggestive name we believe constituted the infringement  and in addition to the factual recitations of this given to you the issues of income rooty were presented to the jury and briefed in this case the issues of foreign equivalents in other words you look at the primary meaning of the word as you  translated and it was undisputed that the primary meaning of the word coat is bones of the dead it has other meanings but the district court wrongly stated that if any of the other meanings are descriptive then it can only be descriptive there was no less legal authority for that position we believe that is an incorrect position under the law we believe especially under the doctrine of foreign evelyn's that you look at a primary meaning first and foremost and when it's undisputed what the primary meaning is that has to stand and again we're looking at what the jury might have considered here all of this evidence was presented to them everything that i've just discussed we believe more than satisfy the standards of substantial evidence to support the jury's findings as i said the expert's report alone could satisfy that finding so we believe the judge was incorrect when he granted the rule fifty motion and his stated reason for doing so is that he did not believe the marks were suggestive in his opinion after hearing the evidence he thought the marks were descriptive and that is the reason he ordered the second trial in fact if we look at what the judge said in his ruling on the summary judgment motion not the not the damn well motion but there was a subsequent motion for summary judgment if you look at the excerpts of record at page fifty five he says any secondary meaning as to the additional quote marks or those other nine marks may have acquired it is an issue that was never brought before the jury so his concern and the reason he wanted to have a second trial on those additional marks was because he didn't believe there was evidence of secondary meaning presented but again that's only one basis for validity if we're looking at this in the rule fifty standpoint we're looking at this from the jury instructions and from the special verdict form any reason the jury came to its conclusion as to uphold that verdict it's not just descriptive ness it could also be  suggested there was substantial evidence that could have supported that finding the jury verdict should not be disturbed especially here after two full days of deliberation on all of these issues that there may have been competing viewpoints on the evidence is natural and certainly expected but it doesn't mean marks from what i can glean from it is i just cite to this summary judgment ruling on excerpts of record fifty five he believed that the marks were only descriptive and in his mind if they're only descriptive then you have to prove secondary meaning he believed that the marks were that were presented to the jury did not have a sufficient showing of secondary meaning so he was not prepared to cancel the additional marks that were not tried to the jury unless our client's first had a chance to prove secondary meaning so the whole premise of the second trial was to have our clients give the opportunity to show whether or not there was a secondary meaning based upon his presumption of descriptive ness and getting back to the original point here if we take that presumption of way and if this jury verdict is reinstated then there is no presumption of descriptivist the jury found valid marks and it could have found them because they were descriptive with secondary meaning or it could have found them because they were suggestive and don't know but what we do know is that in order to give effect to that finding collateral estoppel should apply to both the asserted marks and the additional marks because it's the exact same issue that would be tried it would be no need to have a second trial on the additional marks because the issue of quote what that means has already been decided by th jury's verdict should be respected and i think the judges do the court's judgment should be reversed in its entirety i think this court would be well within its rights to order a new judgment in favor of to reinstate the verdict to order a new judgment in favor of coffee at foods on the infringement claims to find against the the a food on the cancellation claims and the only issue that should be reserved for further proceedings at the trial court is damages and recall that the damages the jury deadlocked on that good morning mitch tell there for at the levy be foods i'd like to start by addressing the issue framed in the court's recent order because we have some disagreement with the appellant about that and then i will explain why the  perfectly sound and should be affirmed now the judgment in this case embraces three separate rulings just to keep the straight and i will try to keep the terminology straight we had a jury trial we had a verdict the court then granted judgment as a matter of law finding that the evidence presented at trial compelled a finding the marks were descriptive and lacked a secondary meaning when v v foods entered the market that was judgment on the first seven marks the court then heard a summary judgment motion in which we argued judge you've invalidated the seven marks you've got to cancel those the other nine marks have the same reinstated you cannot prevail on the additional marks no we disagree with that your honor the judgment on the additional marks is based on a two day bench trial in which both sides present the evidence the judge w secondary that issue was presented in the bench trial the judge he issued in the case well the judge tried the issue of descriptive miss suggestiveness again in the bench trial he found the marks based on the evidence at the trial they cried again it was cried to the jury on the other mark the knowing of code on the first seven marks was tried to the jury correct and then it on summary judgment we argued judge  invalidated it it means the same thing in all sixteen marks the judge said well no i'm going to try the other nine because because the appellate hasn't had a chance yet to litigate those marks if they haven't had a chance to put in evidence of secondary meaning which they didn't necessarily have to do in from the jury because that was in the special finding that the jury had to make in the first trial that was interesting and the special was one of the questions the jury had answered that's correct that's correct so he tried the additional nine marks he found them to be descriptive and without secondary meaning and he therefore canceled them so we have a judgment the judgment on the nine marks will stand because those don't depend on the jame all those were tried to the court so there's a cancellation of those nine that's not affected by a revers next step would be for this court to remember a case so that we can get a ruling on our motion for new trial which the judge mistakenly failed to adjudicate finding i've granted j the new trial motion is moot well if the j most reversed we have a pending new trial motion we've made several arguments as to why the verdict was tainted by error and we're entitled to a complete new trial we've had several arguments your honor first we argued the court erroneous lee responded to a question that came from the jury during deliberations concerning when the jury had to assess val of the marks we also argued a great weight of the evidence point we said the finding of infringement is against the weight of the evidence we also argued that the judge having ordered a partial new trial on damages because the jury was hung we argued that would be unjust because you can't assess damages unless you determine when there was an infringement so we argued for a complete new trial could you have included that in the special verdict after two thousand there was evidence presented to the jury about when the beef in began its use and its so it really goes to the issue of secondary meaning whether because that the plane it had to prove secondary meaning at the time v b foods entered the market there was about a six month window there between when the ad entered and beauty foods enter than october so that's about a six month window but let me now explain why the j mall was perfectly sound and should be a firm so the court doesn't need to reach these difficult rescue to kata collateral stop a lot of the case problems because the j mo should be affirmed the entire judgment should be affirmed now the evidence at trial is the judge didn't weigh the evidence the at trial compelled a finding that these marks are descriptive and it was mostly plaintiff's evidence that did this plaintiff's evidence established the marks were descriptive our evidence corroborated that for example let's take a look at the labels when the plaintiff started the company the labels were in english chicken soup base beef soup base that was the first label then they added a vietnamese b foods is already in the market they're both in the market at this point plaintiff tells the trademark office like to register coke phobos they said what does it mean what's the translation he said coke means will believe he or she is buying a can of soup there's a picture of a bowl of soup on the label without the word coat the consumer doesn't know what's in the can coat is the word for bass concentrate it's not  so that that's that's the word and in fact we presented photographs of multiple products off the shelf in vietnam grocery stores in vietnam using the word coat on different types of products to m condensed and i invite the court to look at the photographs for supplemental excerpts beginning at page eight eight now it's interesting that you know very they also sell a pickled multiple meanings of the word coach in the abstract standing alone yes if you open the dictionary there are multiple definitions just like in english but when he was pressed and he was required to answer your looking at this label on this food product what do you think that word means what will the consumer think he said i think it's condensed they probably used it to mean condensed that's their expert question is it your opinion that the plaintiff uses the word and intends that word to mean soup base answer probably uses the word coach goes with i think it's condensed that's their evidence that's their expert then their trademark attorney took the stand he said when these marks were placed on the supplemental register in two thousand  products and it was the only product with that name on the market at the time we don't know where they were advertising they were doing business in seven states we don't know what their advertisements said and advertisement alone is not this not established secondary meaning we need to know the impact of the advertisement and the evidence of the impact was the survey which the jury heard evidence of one survey ten years after these products hit the market a survey was conducted vietnamese speakers eighty five percent of the people surveyed said coke phobos that's a common  name that's that's a common in a sort of brand name so there's there's evidence they advertised there's evidence they gave product demonstrations in two thousand and two but there's no evidence that any of that generated in the sometime between february of two thousand and two and october of two thousand and two was is that the evidence yes you are ok yes so the the district court properly granted jame all their evidence our evidence it all pointed to the same conclusion there was no evidence that it wasn't descriptive again if it's not descriptive the consumer has no clue what is in the ca n and the photographs confirm that so that the seven march were properly cancelled the nine marks were properly cancelled because the judge the judge heard the evidence on those marks at the bench trial and if the court is inclined to reverse the jade mall then i would urge the court to remain and let the district court judge on our motion for a new trial the scope of the new trial can be part of that discussion the judge is in the best position to decide that issue and again the court's order of of last  collateral estoppel we haven't had a chance to brief it but if the court would like i did take a look at the cases in preparation to respond and the cases confirm where you have a single case like this you can't there's no rescue to  m well if we reverse the j m oh well that issue with that realty of the trademark cannot be retried well that depends on whether the court grants the new trial motion your honor yes that would be another avenue not aware of it until i don't look at the new trial motion well well it's not it hasn't been briefed on appeal because the court right mistakenly viewed it as moot but the fate of the seven marks that are the subject of the  will depend on whether the court grants the new trial motion and the outcome of the trial mr toner why didn't you bring the cross appeal alleging error because george carney didn't but i think there are lots of cases that you know when there's a jury trial and a following court trial court has to give deference to the jury right otherwise i think milk comes under the right to jury trial otherwise you're  never arises yes if he grants a new trial and we lose in the new trial and the jury says the seven marks are valid then the issue will arise is that binding on the judge who there's an independent bench trial the nine marks those who are counterclaims for cancellation tried over two days judge issues a detailed memorandum of decision cancels the nine marks the unrelated to that trial so if you vacate or reverse the jame all there's no reason to disturb that lead judge carney later decide do i need to do something with that if a verdict comes in on the new trial that creates some tension that would be for the judge to decide all right thank you very much counsel thank you hunters i have two points i want to address i'm going to start with one of the points that i was about to get to before stop talking before and that was what judge or law would you reference that i believe principles of law the case would govern in this situation the way i look at this is you had a snowball starting with the jury verdict that the judge then then reversed on the jamma well and it just kind of started rolling downhill and it picked up speed in different trials happened in different findings happen and i think if that snowballs put back up i think all of these other things have to be undone and i believe love the case would govern here because it prohibits the court from considering an issue that's already been decided by a higher court in the same case that's the whole versus city of los angeles case the ninth circuit six ninety seven to any subsequent ruling i think all of the other findings by the judge would have to be reversed and that would then sit as law of the case and i do believe collateral estoppel would also apply in this situation because you have the actual issue already litigated but again  raised in their brief and they're actually incorrect to say the district court didn't rule on the motion for a new trial that's not true at excerpts of record seventy seven there's a footnote where the judge denies the motion for new trial as moot so the judge did make a finding and the judge did rule upon it whether or not that's feiss for what rule fifty c requires as to the findings of the basis for denying it is a different issue but there was a denial and as judge pratt noted there also was no appeal from that and i believe that was an appeal  order and i believe that should have been part of their cross appeal which by the way they did bring across appeal in this case whether or not they have to and i believe there's a waiver issue there on the new trial issue that should be considered mr costs appeal on the cross appeal soley on attorney fees they brought a motion for attorney's fees claiming that this was an exceptional case that should have entitle them to attorneys fees but there is no other issues and there's a reason you won't find the new you're asked where the new trial motion is there's a reason you won't find it because it's nowhere in the supplemental exams they didn't include it they didn't appeal from and so our position would be they waived it and oh by the way the judge did rule on it and the judge did deny it so i think there's nothing further to be done on that issue if the case is reminded i think the only thing that needs to be done is have the snowball put just now basically bore upon secondary meaning all of that was provided presented to the jury in addition to a whole lot of other evidence that was presented over three days the jury had all of that to consider the jury was perfectly well instructed edge of the record fifteen fifty to  five fifteen to five thirty show the jury instructions were all the standards were clearly laid out the verdict form a group of records five sixty nine five seventy shows the questions that were specifically put to them very first question are the marks valid f the judgment should be reversed and the only issue to be taken out should be damages on the deadlocked jury issue that's the only remaining piece of the puzzle that this the district court should have to consider and if there's no other questions around it with that it was just for sure i didn't i haven't gone to not your honor and again when we look at the the motion for a new trial there has to be a finding that there would be a miscarriage of justice and there's nothing in that motion which by the way is not before this court which would suggest that there would be a miscarriage of justice in the way the judge