the next matter on our calendar is carmen electra and others verses fifty nine mary enterprises and others ice morning good morning your honor may it please the court giancola chef ski on behalf of the appellant's this case centers around a predatory exploitation of advertising scheme implemented by the defendants in order to sow confusion with the public concerning their product we're dealing with three men hatton bay strip clubs here the product of a strip club is an entertainment experience where women undress and dance for money in a very real sense the product is women and we know from the professional models that as a matter of course they enter into releases hundreds if not thousands of releases they absolutely entered into releases for the subject images that were then misappropriating or professional models all professional models a model for these kind of photographs with from mission but there was no permission to yours that they argue about the the inquiry under section fifty one of the new york civil rights act is whether or not by the terms of the statute the defendants had written consent that's the only increase is been interpreted that way even though and so that was given at the beginning at the end did they have written consent is the question for us i think i disagree with the beginning and the end they gave consent to a rd party with whom they entered into an agreement claim an indorsement claim in the lanham act has certain particular required and the requirements of that are of confusion so that what there may be any number of other things which might have been brought but are not before as for the only thing that is before us is have you made out enough for indorsement and if that's what he issue then a question of confusion the question of strength of market and so on is crucial and the district court found that the only one as to which there was that kind of possible endorsement confusion is whether there was a general effect resig instance specific as the section three for one thing that's something different but that's the section fifty one intellectual property infringers have tried this for decades have attempted to say that they were rd party beneficiaries a release with which they had nothing to do my clients can enter into releases with whom ever made at me like the operative question under the court of appeals in new york and the stefano case under the newman case under judge raycroft in the chamber st time warner case is whether they have consent other data on which they use these photographs have an advertising scene they want to convince the public they make representations about that they have the most beautiful women in new york or gorgeous strippers whatever type of girl you're looking for we got it they own three strip clubs they have dozens of strippers who work and they misappropriate the images of my clients who are world class and in some cases world renowned professional models to back up those representations counsel tries to disparag clients by saying that they are quote generic attractive women but that is not the case at all these are women who have trademark rights who have commercialized their image for the decades every single one of them your honour's and one of them every single one and there has never been as there has never been a standing ar model well known by their face and for absolutely honor that they have commercialized their image for decades if you go back to your honor's point the the operative question is not indorsement alone it is called a false association limit well there is there is diversity of jurisdiction your honor on all of these claims as well all of my client the unit out of state that is correct your honor but if i could go back the issue that we have is that the district court the district court said that the product being advertised by the defendants in this case is alcohol nothing could be further from the truth it is a grave and fundamental misunderstanding about what these advertisements are about these advertisements or trying to get people to come to the strip club a strip club without nude women is simply a bar so the district court saying that what they're trying to peddle here is alcohol transformed this into merely a celebrity endorsement case when it's not it's not what the statute says one thousand one hundred and twenty five provides protection for affiliation connection association origin sponsorship and promotion all of these things store industries as confusion means confusion of any kind and the district court ignored all of this the district court because it said it's really celebrity endorsement about alcohol what the district court may missed is that they are trying to confuse people about the product they are trying to tell consumers that if you go to these strip clubs you're going to see these women dancing there they say are gorgeous girls and they have pictures of my clients next to me and that is the fundamental problem and why the district court got the entire identified by name and the pictures that are not your own and then just by their photograph right that's what i thought i have the examples in front of me yes so that they were counting your counting on your client's be recognized their faces being recognized and they were actually nice how else could they were taking advantage of your clients are taking advantage of the goodwill and reputation they have by virtue of being beautiful women again they they employ many many strippers they use my clients images because they want to convince people that my clients work there that women who look exactly like my clients work at the club and if you go in you pay your money to go into the club these are the women that you're going to see there it does not hinge on whether or not carmen electra is in fact going to be there the question is whether or not these women actually work there or have any affiliation association or anything whatsoever to do with these clubs and everybody agrees that they do not this is why the court found as a matter of law under rule fifty six that these advertisements are in fact false and then among the other things that the district court did after finding their faults it ignored decades of precedent in this court which says upon a finding of falsity in a lanham act claim you dispense with the need for extrinsic evidence of confusion there is a finding of falsity it is bolstered by staggering confusion rates of upward of ninety percent of respondents who believe that my clients were affiliated with the club just as they intended affiliated with the club agreed to be in the advertisements it's ok thank you will go in your favor they did not but they're very broad and give the photographer or whoever the holder of the license was the right to use these photographs you don't claim any direct line of custody from those to you you just r these pictures right yes might you get them my clients relied on a rd party marketing provider who got those images from somewhere a catalog and other sources that  he understood he had the rights to do and turns out that he did not but my clients had no knowledge they relied on that provider to they didn't have consent from the models didn't think they relied on their provider who said we have all the rights that we need below the damages expert that they relied on mr chamberlain was incompetent simply made up his numbers in terms of what the plaintiff's damages were and there was no other evidence in the record of any real damage are claiming you know the fair market value of their photo shoots was x whereas for most of them they received only a fraction of x as when they were actually modeling so you judgment motion to come forward with lay bare their evidence as to what their damages are they did that relying on an expert who was disqualified i doubt under doubt parent because his methodology was basically nonexistent and that's why they ga again it's pointless obligation to show that they were damaged in avin there may not that burden you have to reverse the district court and find that mr chamberlain was a qualified expert and that his as damages were properly relied upon and i think if you look at the record you'll see that there's no basis to do that he took models who got a one thousand dollars for a photo shoot and said that the value of a particular image was not been specifically shown because the expert has been excluded at that point is it enough to say that we are business happened some damages are ver then proceed to a trial in which they are allowed to try to present other evidence of damages and at that point whether via evidence is very or not will determine what happens then but it this stage do a deed more of him to show that there is some damage without showing what it is well i would see any basis to  of nd by the apple having put all their eggs in the basket of mr chamberlain saying this is why there are damages that basket had a big hole in it why should they be given another opportunity what is it that is enough to get by a summary judgment a preliminary freight in a state in a showing of damages you need i mean granted that they put their eggs in that basket and that basket failed when did they nonetheless ha really pointed out they played a false indorsement claim here that's what this is about whether you call it false indorsement or false association it's requisite that you have a strong mark that's worthy of protection and that's the test that starving show a likelihood of confusion here where there is no strong mark because nobody knew who these plaintiffs were other than carmen electra there is no possibility of showing a strong mark or a likelihood of confusion  he relied on a survey that our expert robert klein showed was fatally flawed in myriad of ways most importantly the not of the point of could show that anybody knew who they were one out of the many respondents identified cardinal lecturer that's in person identified a different model as a model who's not even a plaintiff in this case so there's no basis to show that there's a strong mark here worthy of protection plaintiff argues that all you need to show is the point is intended to commercialize their images but there's just nothing in the case law that suggests that unless you've established something akin to secondary meaning that your mark is worthy of protection for unregistered mark you're not going to have any protection the critical test of confusion here is whether anybody associated these anonymous models with any trademark nobody did because nobody knew who they were as judge found below the logical assumption anybody would have it looking at these advertisements is that these were models who were paid to lend their image to a advertisement as is done all the time for peanut butter and you know every other kind of product this is not a case where somebody said oh because this woman is appearing at this fair market value is not the proper measure of damages in a right for the city case is absolutely incorrect very importantly the district court didn't tell us what would be the proper measure of damages for market value for decades has been found to be the proper measure of damages in a right of publicity case now people can debate how one gets the fair market value but to say that fair market value is not the measure of damages is absolutely incorrect even if mister says that his methodology was not scientifically supportable absolutely not and it's part of the record their expert the former head of former president of ford models looked at his methodology and said these are exactly the steps that you take the court looked at the fair market value and said we're not giving fair market value even if this court was to agree that mr chamberlain is gone that does not mean that my clients not get to bring their earnings and before a jury that is they didn't even move for summary judgment on this you get damages even without an expert absolutely there's no there's nothing you really do it based on the earnings of these women based on decades of earning information absolute that could be presented to a jury and a jury could say can say well they were entitled to this they were entitled to this amount of course but there is no issue from our perspective with that a lot of talk has been about strength of mark here and i like to point out the fact that strength of mark is but one of seven polaroid factors three of which the district court found favored us including the two most important similarity of the marks and proximity of the products and how the court appreciated that the product that was being sold here was not alcohol but was a entertainment experience with nude women the quality of the products and if they would us to that means for work of the seven polaroid factors favor us and actual confusion and bad faith on not necessary that means four of the five polaroid factors that are necessary favored the plaintiffs and we are denied the opportunity to bring this court to bring this case to a jury because the court says there is no question for rule fifty six purposes that the advertisements are false and misleading there's no question but there's also no question that these false and misleading advertisement could under no circumstances cause confusion they're definitely misleading but they could definitely not cause confusion we believe there is a real contradiction in that whole thing and has been proved to be wrong nearly identical claims have gone t juries in the southern and middle district of florida and they have found i'm sorry in the southern issue for somebody judge summary judgment has been granted for some of these people on lanham act claims the notion that we cannot go to a jury so the jury can determine strength of mark which is a factual question strength of mark and all of these other issues on the totality of circumstances for likelihood of confusion confusion there is nothing to support that there is nothing to support for of seven polaroids factors favoring a plaintiff and they are denied the opportunity to go to any other that the holding of the district was that no reasonable jury could find likely to confusion and we go down to the middle district of florida and a reasonable jury comes back and says of course there is a violation because you look at the totality of circumstances the polaroid factors are almost very similar to that applied in the