please the court gregory phillips on behalf of appellant the issue presented by this appeal is whether the doctrine of the that it functionality as opposed to utilitarian functionality has any viability in the circuit when applied to distinctive source identifying trademarks and inflicts billiards a brilliant and scholarly opinion this court held that us that it functionality has been limited if not the ring logos you don't have to prove functionality or non functionality that's that's not an issue so we believe that billiards rejection of aesthetic functionality in the  the if you apply complex billiards to a trademark case the argument for rejecting aesthetic functionality is even stronger and when you think about for example a license plate flame what utility functionality it's all about is you can make for a license plate frame but the issue here is putting the logo on the license plate frame and you don't need a logo on a license plate frame they could've put an automotive gold logo on the license plate frame but instead they chose a that functionality although not in this context and you know color and some other so and the concept of a little bit baffled by why you think you win you a functionality argument there a static functionality deals with the intrinsic value of a trademark the argument that a rolex counterfeiter would make selling a rolex watch on the on on the street corner saying we don't put the trademark rolex on the wrist watch for a store side down a fine function we put that on there because people want to have rolex for an aesthetic function to make them look good and we all well that that argument doesn't accessories and somebody comes along and says well i'm going to make a golf ball and i'm going to put a nike swoosh on it but the reason i'm doing that is not and i'm even going to put a disclaimer on the golf ball on the packaging that this golf ball is not manufactured or endorsed by nike the reason i'm putting the nike swoosh on this golf ball is because i know that people like mr phillips like to excess arise they're accessories and look good and that's the only reason i'm putting the nike swoosh on my golf ball and under what the district court did the district court bought that argument and what happens if you have people like automotive gold and  clear about this automotive gold knows what it's doing it has trademark licenses with honda with general motors in fact your honor if you look at exhibit two page two seven three of the excerpts of record which is in bottom if you look at it it says honda emblems and designs are trademarks of american honda motor company and used under license by automotive gold in tucson arizona they know what they're doing they have trademark licenses with other automobile manufacturers but when they can't get one with hopes wagon or audi they go out and they knock off the market and then they come in and they make four arguments first that's that it functionality and if you carries that functionality for trademarks i'm not talking about trade dress or the functionality of a product but just for the rolex trademark if you carry that to its logical conclusion it is this race the lanham act it allows the rolex counterfeiter to say i put that on there for the aesthetic function of people looking good not to indicate source they make another argument which is a distraction or argument and my intellectual property professor taught us that in the counterfeitin we're somebody sitting next to that guy on the airplane and looks over his and that rolex watches a piece of crap i'm surprised rolex makes stuff like that i'm never going to buy a rolex watch so that land that protects the whole spectrum not just point if the guy who knocks off the nike golf ball puts on a disclaimer that this is not really manufactured by nike i don't think that's a defense under the trademark laws the third argument that they make is the vote in an audi are being anti competitive because it would be like the guy who knocks off the nike golf ball coming in and says i can't compete in the market for nike golf balls because i can't put nike on my golf balls well the rebel that market is not mean the relevant market in the nike golf ball hypothetical is golf balls it's not nike golf balls and the reason you might not be able to compete in the market for nike golf balls is because nike spent hundreds of millions if not billions of dollars advertising the nike swoosh around the world and just like rolex has and people want that mark on their golf ball but that there shouldn't be a defense for trademark infringement it infringer counterfeiter shouldn't be able to say well i can't compete in the watch market because i can't put rolex on my counterfeit watch i have to put my name mr philips philips watches on  that that that doesn't work and then the fourth argument they make which is confusing for judges who maybe don't know about the past and trademark office is well nike doesn't have a trademark registration in the class of convenience of the united states patent and trademark office only and that they don't they don't limit one's trademark rights and in fact as your honour's know you don't even need a trademark registration to have a trademark trademarks are created by use trademark registrations help you with certain presumptions but the fact that you may or may not have a trademark registration in a particular class is completely irrelevant and those are the four arguments that they made to the district court that the district court bought and briefly i want to talk a little bit about our affirmative infringement case we're not only asking that the court reversed the district court's entry of summary judgment in favor of automotive gold court also on appeal grant summary judgment in favor of volkswagen there's no dispute about the facts and as professor mccarthy said cases like this where you knock off a trademark or open and shot are so far afield from autos but are you saying that you only need to look at like for like here because you're in the range of product that's correct and i mean one of the interesting things that's happening now and in the marketplace is people are trying to extend their brands you have nike swoosh for shoes and they're now trying to extend their brand to golf balls you have companies like general motors that make cars now trying to expand their brand to coffee mugs and whatnot and you've seen that brand extension in the marketplace i'm sure and it may very well be at some point time alley tries to extend its brand to cookies and i don't what happened on that your honor is that there was a stipulation that was entered that dismissed counts three and for three was the consumer fraud four with intentional interference there was also a counter claim that had counts three and four that had a dilution  counsel below made a mistake and didn't realize what the court had dismissed and said well in any in any event let us reinstate our dilution claim by amending our complain if it's not in the record and then what happened is the court  would be futile to allow you to amend the case because i find that there is no consumer confusion and the problem with the district court's analysis was consumer confusion is not an issue in a dilution case  you want is the direction of summary judgment in your favor on the regular infringement claim yes and statement of the delusion is that sort of water under the bridge at that point water in the bridge we would just take the summary judgment on the trademark infringement case i think the court could do it on the dilution claim as well but i don't think that's necessary and if you look at the side by side comparison there are several important factors there first of all we have our trademark registrations on the right hand side they have become in thing past the ball because they've been around for five years that means that there's a problem with a ship presumption that they're distinctive and that they have a secondary meeting the court knows that the evidence of a registrants exclusive right to use the registered mark in commerce so another presumption that was presented to the district court is we have intentional copying you can look at those photos and see that automotive gold intentionally precisely copied our mark well intentional copying gives rise to a presumption of secondary meaning as judge roberts said in the ford versus lloyd case the only reason they're knocking off the markets because the mark has a secondary meaning and the final factor that's important is intentional copying under the a t m f u sleek craft this court has ruled that if somebody intentionally copies a trademark there is a presumption a legal presumption of confusion just go back  well and granted summary judgment in automotive bolts paper saying that there was no trademark infringement because of a static functionality i missed the distinction i'm making is that he has two separate paragraphs one where he says they're just dismissed but that is that these are kind of things not included in the first amendment counter planes and those are dismissed too so i'm just reading this and i'm wondering does that mean that the trademark infringement c please the court i'm counted on representing automotive gold this is a case that was decided on a summary judgment on a form of adventure and record both who are going to have the of discovery and several extensions had been given in order to allow the parties to conduct discovery and complete it before the summary judged that's were filed o that of a an expert on disclaimers and they didn't present any surveys or any other evidence to show likelihood of confusion or actual confusion in the case you need to identical that's one of the facts that we established in the summary judgment record and that is that we do not sell our products without the package in other words true but as we know you look at trademarks in the context in which they appear in the marketplace and in that this particular marketplace the trademark that appears is the automotive gold trademark  when the product is sold and that's the only point i'm making and rick in relationship to that find a high quality good watch and it doesn't say anywhere rolex and he opened it up and it's a rolex somehow you know precluded you know you know inflated from trademark infringement simply because you put it in a smart case and also sleep crafting and of itself in other words in sweet craft the way the product was presented in the marketplace at least in some instances in that case was sleek craft with the sweet craft logo and the court said that if that had been true all of the time it would have neutralized the confusing similarity of the slick craft and sleek cra fundamental principle of trademark protection i think your honor if i may mention the klicks case i think you've said it in that case and that is that really it's a competitive issue when you come right down to it in the tone case which is a very good example you have a product where the signature of that product of that which makes it competitive in the market place it's differentiating it's product differentiation it is the tone design if you want to call it that register trademark and what this court said in that in both the tone really and in clicks is that this is the basis upon which this company competes in the marketplace if we let anybody imitate it then they're going to lose the ability that the trademark gives them in the market in which they compete that being their signature the the design and so that's pro competitive and in other words trademark law as it is typically  in this case there was no company i mean excuse me both wagon refused to license the trademark to us and basically what that ended up with this is a monopoly on the product in other words we're talking about i don't you know we usually don't think in terms of trademark cases having the same parameters of market definition of as antitrust but in this case we produced evidence from a person been in the business for many many years that in fact there was no pro cross price to last this city of demand between the license plates that bear college identification for example and the the license plates for folks walk in cars there's a just as a college type of you know license plate does to some people who attended that college but the market is what the market is and there are five companies that are in this business and in fact what happened and it's kind of interesting in this case is that both walk in and out he entered the market after we did and basically in their ads and i shouldn't say add in the promotional literature that they attached to the declaration of a paralegal they indicate in the ad that this is to address up your car in other words this is a phenomenon this is the kind of phenomenon that drives daughters was talking about i think and it's a it's a merchandising phenomenon that in effect does become the market now whether it is whether it's their complete cross crisil last history of demand or there isn't you know we didn't do that in this case but basically we had a witness who had been in the business for years who said that when people come in this is what they want the market used for these products and it's a unique market there's five companies competing in the market and that if prices were raised for example the college plates it wouldn't have any impact on me we get a premium for these plates and basically the end dishes that you as something that has no other way of being depicted in other words you have because there the product with the box but here the product is the license plate and so somewhere between  tex the court was grappling with this issue of functionality with respect to color and one of the cases that they cited with approval was vacationing valving john unique in this business in other words it is a trademark they have sort of the trademark right now they said everybody recognizes the green john deere tractor as ours the corps and this was competitors need that color because the consumers who buy these want them to match their own equipment in other words they have to have green too because license plate with the volkswagen car subway think it could be said that books were getting benefits from it in reality because once it goes on the car it's another advertisement developed in that industry and there are different marks that the consumer has has appeared to accept as being substitutes so you get into the competitive substitute issue floor mats to there and i don't i haven't studied the industry but it could be that there is competition that would make that situation more akin to the clicks billiards or the you have the tone but i think in  other companies and what the benefit is and this is where the consumer protection i mean aspect of the case comes in is that provided of course that the public is aware and is made aware that these are different companies selling these products the consumer is going to ultimately get more of the variety and better lower prices but that's true  what the consumer demands i mean do i know why consumers demanded grain competitive farm equipment you know i don't know the answer to that question but apparently consumers d for one reason or another create markets and that has happened in this particular industry i mean we're talking about license tags licensed you know frames he changes and and that the the consuming public is the one that is making that choice as to what it is that they want to match their car with it's somewhat of a phenomenon i think that it's been going on for quite a long time in this particular  current day i think a lot of the three with you know the straight leg well there have been you know there have been cases and i think that this is an interesting read on that there have been cases involving the use of symbols for football and hockey teams and of course jobs daughters harshly criticized the the fifth circuit in the hockey league case because of the way in which they established confusion in the marketplace but there is another case that came down and unfortunately i don't remember the name of it but it involved the same issue in other words the i think was football badges that  being sold and the court basically said that the real it really comes down to here is this is a product in which the consumer really thinks about bought sold it in other words who either manufacturer is or who the sponsors and so the football i think was the n f l came in and said ok we have a survey that establishes that people do in this case think that these badges come from us or are sponsored by us and that's what we're advocating in this case in effect that didn't happen here but that it would seem to me with respect to judge because the infamous opinion in plastic color judge kozinski after further reflection said never mind about that opinion and we've cited that law review article and the reason he said it never mind the trademark icon on that watch serves in the static function it dresses up the person and therefore rolex shouldn't have a claim and that's what the argument is here volkswagen ality should not be able to enforce their trademark registrations because those logos dressed up their vehicle to the owners of vehicles were not using it to indicate stores were using it to perform these that function and this court said inflicts billiards static functionality on is the antithesis of that and can't be used for that and so if you carry mr coote ons argument to its logical conclusion it really rips the heart out of the lanham act and provide