argument the air i'd like to focus on is the district court's findings which was the backbone of the knotting my client permanent really against and adjudicated infringer of a trademark kind of a trade dress and for committing various acts of unfair competition the district court in the opinion that the r twenty five specifically made the finding that plaintiff monster does not offer evidence demonstrating that it actually lost control over its business reputation and that's goodwill has actually been harmed the record is overwhelming to the contrary i do not believe that the district court actually understood what control is i a trademark on st i'd like to address what is the asset that we're talking about and why is control the asset is the mark monster the green and black trade dress the name monster is under spewed it to be at least a five billion dollars asset and on social media it is one of the top ten trademarks in the world following the likes of starbucks and is on nike and wal mart there is no question on the famous nature of the market and the valuable asset that it represents i monster energy's key asset but it only can remain that way if there is control over the asset the entirety of the trial particularly the testimony from m o and principal founder of my strategy explained an excruciating detail how monster controls its mob are why that is so necessary what exactly is control control is necessary by any trademark holder who values their trademark and that means you have a choice to make when you control and trademark you either sue to prevent authorized  you license with tight restrictions to preserve the exclusivity of the trademark then you're to control kills a trademark this case showed tremendous efforts by monster both to control by suit and to control by detail license agreements where no murders restrictions are placed on each and every licensee before they get the privilege whether or not to grant a permanent injunction asked me several elements of it and one of the things that we know that yuri's verdict is  no your honor and for several reasons i disagree with your premise of your question number one this court the th circuit has already held that you do not be actual damages for injunctive relief in a trademark case that's the safeway case of nine hundred and fifty seven dollars where safeway food stores successfully and joined a furniture store that was selling safeway furniture even though there was no award of actual damages the jury simply found that monster did not prove the amassed the compensable amount of damages that isn't a remedy at law the jury did not decide irreparable harm irreparable harm is decided on the entirety of the record not just the jury trial record and judge marshall so hell so when you decide whether to grant a pretty limited a permit injunction the district court is free to look at the entirety of the record because that decision is not the decision that the jury makes the jury decides only monitary really the jury does not concern itself with the ok i don't count i think you're correct about that but there's no indication here that the district court didn't look at the entire record in the terminating that a permanent injunction injunction wasn't warranted because there was a lack of showing of iraq war and and in in assessing irreparable harm i think the fact that we are all award damages was given by the jury is relevant to that consideration i don't think the district court limited its analysis to just pop oh well i in looking at this record you know i think it's conceivable that this trick judge could have cut the other way but our standard used to determine what this district judge did and whether that's reasonable in light of the did cite many transcript pages but in particular the fear the fear that was explained to the jury is by mr sacks and like any good trademark holder the fear in this case  was that the market would become ubiquitous so you must control the quantities of qualities that life can see the trade channels before you even think about licensing somebody trademark holder who fears the exclusivity of the trademark is lost it would be lost if we no longer had control and here we have undisputed ongoing infringement on both the trade dress sixteen registered trademarks and we are now at the mercy of a company called independent supply network who we have never heard up until this litigation they  company that is not in the top tool company brands and in fact we have relationships with cool companies that was explained that we have relationships with stanley black and decker and the walt and mac tools these are co sponsors of hours in the tools face the entirety of the trial your honor if you look at the entirety of mr sachs testimony virtually every page of the excerpts of record explains the need for control and the absolute disaster that would result if monster cannot control these licensees and when you can't control the licensee the record shows those licenses are cancelled we made a re unlike the cases that were cited unlike any of the other cases that are in the briefs no case has the extensive record of hours where forty eight license agreements were made of record and every one of those licenses shows tight and eighty three the disaster is we have a company called monster who is selling goods every conceivable type of good in areas that we do license even in fact when it comes to the gloves they get their gloves made by the same company that we want to since so just imagine licensees out there seeing goods in the marketplace where there's course being the leading energy drink manufacturer in the country it is it is the worst case scenario for any trademark holder to be facing an undisputed infringer someone who doesn't even challenge but like confusion know there's confusion the evidence is abundant that there was confusion there was actual confusion we even brought in three mechanics who were confused we did a trademark surgery a survey with twenty four percent likely to confusion eat day and heard read heard or read i think the court was somewhat misled thinking that you can't rely on confusion alone well that's true we're not relying on confusion alon about lying upon is the fact that we've lost control that we have spent twenty almost twenty years exercising excruciating control and i asked the court to look at this is the green mint which i think really tells a lot here is an example where the district court thought it was a license agreement and it was somehow permitted usage of them are not true sire sport which is  thousand dollars and then we had to figure out a way to disassociate to make sure there is no confusion between the defendant and monster really after twenty years of effort over five billion dollars undisputed in marketing and promotion of the monster name and to fame we now are at the mercy of undisputed infringer and we had to bring suit again we are now in the district court again because the infringement is ongoing and they are expanding and if you look at the catalogs every year they are expanding and they're using here the real harm they are using the denial of the permanent injunction as it could some sort of license to continue to use to continue to expand to continue to cause confusion the harm could not be worse and the cases cited by the district court are cases where the record is paltry the two cases that disappoint cited were contemporaneous with her read where the claim is that not make a thorough record of harm here we did and there are presence in the automotive in tool field through our my son's agreements and these licensees either pay offs or we are in arrangement where they bonser us the best example that where we control is the nascar nascar the biggest racing abend united states thirty eight races televised every weekend in the united states we are the non figures monster of sell monster energy products but look what we make them do we control every product every quantity every logo placement the quantities control the distributor we even control the price of the cent that we have minimum royalties so the prices don't lower and ongoing infringer was complete and free to sell whatever they want is the absolute worst harm any famous trademark holder could encounter and then to add insult to injury the gist of what shall we have no standing under state law and society only class act lawsuits on false had ties it totally irrelevant on the sea a trademark holder who owned the registrations is free to assert their marks and this is why i also think the jury we appealed that journey verdict  damages is also completely unsupported and there is no evidence to suggest that we would ever licensed commercial license to some i r s and independent does supply network a three mint's in the district court and now before this court really boiled down to this because the jury made three explicit factual findings providing any relief to monster energy would violate multiple rules of law including the constitution and those three findings no injury no causation no actual damages and we believe that the district courts errors flow from its implicit rejection of one of more of those but since mr ray's started out with the injury let me just begin there x trial monster energy present presented five of its employees actually four of them were current employees and one was a former those employees the senior marketing people all testified that they experienced no actual confusion with bias and problems the senior v p of finance for monster energy said he could not point to any lost sale due to my client's conduct the c e o who you just heard a lot about specifically testified when i asked him on cross examination can you point to one can of your drinks that you lost because of my client's conduct you said i cannot in fact the majority of their witnesses and i believe it was all three of those four of them except for mr sachs didn't even know who i asked and was prior to this lawsuit in fact the council is still getting our name wrong it's invigorated supply network not independent supply network this is the problem that we were facing nobody at monster energy had any clue who we were and this was where we zeroed in our defense to say that there was no injury in this case and it worked it worked the jury tried to jury and equitable claims are tried to a judge and there on the same facts the th amendment requires the district court to follow the jury's implicit and explicit factual findings the district court site that decision and it reached its own conclusion based on the evidence with respect to the  held that injury is not required in order under to sue somebody for trademark infringement that's so number one we believe that they don't have any standing in the case should be vacated on that basis a wall but number two we have dramatically changed that mark their biggest complaint was that we had monster in a very very big font and mobile down below we have changed all of that and we presented it to the district court before but the grant a permanent injunction and it was still  so we don't believe that even with our exit resulting changes that there's any infringement but when you go to the standing analysis here they don't have standing and if you do follow it and this is one of the issues that we have with monster energy is that they keep saying that the standing analysis is confined just to the pleading stage but justice scalia in both blue hahn in the lewis decisions the standing is a stairs if it's a threshold requirement on pleadings then you go to summary judgment but brahmanic there's so your honor st of all this court like every other circuit requires an objection to a jury instruction or to preserve something out of appeal and we specifically agreed to that jury instruction and you can see that we landscape has completely changed right but the c b case then to as well as a case that literally just came down ten days ago by this court with respect to a change of law in a criminal case says that that pool if there is not an objection to plain error standard rule applies and in that criminal case judge want to talk about united states versus johnson and that case the supreme court changed the standard with respect to a felon in possession in the knowledge requirement for a felon in pos have to show at the pinnacle of a miscarriage of justice pinnacle was used in that case was a nickle fall miscarriage of justice and in this case they have to but they have the burden of showing that the result would be different if you look at the  with respect to windy or anything else with respect to any trademark infringement case and in the circuit you have to show the fact of injury you have to show causation in order to get there you can't just come in and say i want trademark infringement and then i get a discourse f profits otherwise anybody could sue for mcdonald's marks and say i get my i get your profits for trademark infringement on mcdonald's you have to show a particular lies to concrete injury that's what and in this case we showed that the result would not be different they have not dared carry their burden of showing that they had any injury and we talked about this exact standard was in the digby edward court case where they were the court held the dust must show some evidence of injury as a result of defendant's conduct before it can recover defendant's ill gotten profits where is the injury here we sell high end tools to auto mechanics out of big box trucks we don't sell drinks i said in my opening statement you don't drink a wrench that the jury believes bad with respect to not only the fact of injury and causation it is just missing there would not be a real different result here and monster energy has the burden of showing the plane error review applies and that there is substantial rights were violated and if you go to that c b case can you honestly say that the change of the law is the pinnacle of fall when a criminal defendant in that case was not given a new trial based upon the change of law that the supreme court did on the knowledge requirement for a felon in possession here the jury came back was zero they actually wrote the number zero and they wrote in all caps the word zero next to that in case there was any confusion but then they did award the five million dollars the district court after the trial was done increase that damages award from zero to one dollar specifically in order to save the five million dollars punitive damages award we can tend to bet that was error for three reasons st the district court's reliance was three is found then it is mandated it's a nominal damages are required and in a case like that the only other case that they relied upon was the less prince versus the of spokane case which was an retaliation in constructive discharge  but there nobody objected to the nominal damages going from zero to one hundred dollars we certainly have objected to that year and what the district court did even by giving that dollar is it ignored the jury's findings of no injury and no causation with literally no analysis zero analysis that was done and that we believe that that zero should stand and therefore under california vs all to spider man's that entire punitive damages award should be vacated in addition to that the state farm mutual automobile insurance company versus campbell case specifically says that punitive damages are can only be awarded after an award of compensatory damages so we've got a win here with respect to california vs all to spy nance and we have a win with respect to the campbell case now if you go beyond that let's assume just for the sake of argument that that one dollar was ok that that that this court is going to permit it's ok for the district to award that one dollar then you have to go to the b m w versus gore factors you know those factors i'm not going to start restating them but with you look at the degree of represen district court found words on the basis of one e mail one e mail string and what happened in that e mail string in two thousand and sixteen was that employee one at i r s then recognize that monster energy was sponsoring and ten for six years prior to that and on top of that the jury did not find any wilfulness that was emblematic it was part of that that degree of represents ability here with a smiley face is i believe a factor that goes in our favor  the nd factor when you ask yourself about the disparity of harm that depends upon whether or not you permit the zero or the one dollar if it's zero it's five million dollars if it's one then it's one dollar short of five billion dollars and then the rd factor which generally looks at that rate show analysis we know that the supreme court has said anything above nine to one is constitutionally suspect but in this case we say that five decisions from this court that remain ended for below a ten to one ratio for damages monster energy did not even cite one of them they didn't even try to distinguish them and we said that some pacific farm where there was a serious and intentional commercial fraud and in that case they phoned up thirty one to of looking at a ratio when the ratio is compared to one dollar analysis and i understand your point the point though here though is that even if you look at b m w versus north america versus gore in that history's a two million dollars punitive damages award on four thousand dollars when the supreme court said that went ratios are necessary in order to benchmark against other cases in order to at least see how much is reasonable respected this and where i would respectfully disagree with the district court is that when you're talking about section nine hundred and eighty three cases we're talking about people who use the th amendment th amendment th amendment rights have been violated by by law enforcement that is just simply not a kin to a trademark infringement by it mid lease somebody that spending billions of dollars on their advertising and in fact the the this court is also held that there is a racial slightly greater than ten dollars to one dollar in southern union and they reduced it to three to one because they held that any harm caused was not to pot some or struggling person it inflicted upon a very large company we are peanuts as compared to monster energy corporation we are a small coke company in florida that right now is for a willing people because of coke it idea that we can absorb five million dollars is wrong this and it is this is a extremely serious issue for my company and my client they cannot afford this so when we're talking about this degree of represents ability and if we're going to go beyond that ratio and else which i think the supreme court fairly requires but if we look at that and we look at what somebody can actually afford we're talking something here in the low six figures right now and frankly any money that goes to monster energy right now is likely going to result in even more employees being let go unfortunately that's just the reality but when if you look at and one of this will question that i would ask if i were you is that if if i would say ok well listen you're talking the entire time here you should be respecting the jury's decision with respect to lack of injury and lack of causation but now you're saying we should vacate the punitive damages award the one thing that i would just remind your honour's and i'm sure you are you know this but the supreme court's decision a cooper industry sources leatherman tool group specifically holds that unlike compensatory damages which are a finding of fact the supreme court has held  not and they are subject to your analysis and are subject to your review and that's five hundred and thirty to us that forty seven we cited this in our papers but you do not need to apply a clearly erroneous standard to to that finding a pun damages with respect to that so finally with respect to our request if you go in judge bolton and i understand you know when i very much respect the court of appeal saying listen i wasn't there you know and maybe one dollar was right in order to save the five million dollars i understand that but the jury's finding here under a cost was zero there was no injury there was no caus add that to what the district court phone about no irreparable injury whatsoever and the district court by the way relied a lot on that san miguel decision of this court which they actually granted summary judgment of infringement and the jury came back with  district court just then awarded a permanent injunction and this court reversed that permanent injunction so i mean that case is extremely close to this case you know what again monster energy didn't even address it and the place and there's the district court we did monster haven't proven anything i know that they're being i know that they spent a lot of money i heard about it a lot at trial over and over and over again so did the jury it did not work they have lost we won and what i would ask this court to do is to correct this error with respect to the punitive damages and then finally of the attorney's fees that was awarded this one the jury award went from zero to one to say punitive damages the only way you could get relief with respect with lana macko name but the district court found under akim fitness that this was an exceptional case that merited attorney's fees against by far and i would stipulate that it's exceptional it's exceptionally bad for monster energy but this is not something that mandates attorneys fees that should come to our to my point should have to pay i have nothing further unless the court has questions all right th their time thank you st of all they lost on the argument that the jury somehow makes any findings concerning everybody in the records are different the jury does not decide irreparable harm so the jury also never found no injury i believe he's also disregarding the case law that you don't need to be competitors i gave the safeway case as an example the th circuit nine hundred and fifty seven there's no response you don't need to have lost sales they don't sound and he drinks that's not the point i cannot put a starbucks label on the back of my chair that's not permissible under the trademark law just told me did not get an answer to your question they obviously treat the denial of the injunction as a license as if they're free to do with they want the fact that they're peanuts and that we have no clue who they are is precisely the fear we have they are not a compan advertising standards cases where parties do on behalf of the public those are cases where you need to show injury in causation for standing those really cases the district court wong he cited in her state law no standing holding but counsel is picking and choosing what he likes and dislikes from the district court the district court on e r six explicitly rejected his lexmark argument le was a false advertising case and you can see in false advertising cases when members of the public usually on behalf of a class claim they can sue when they see a billboard that might be false that's not the case here we have the registered owner of the registered trademark who obviously has standing and so this standing argument is truly frivolous and the district court only body with respect to the state long claim because of prop sixty four dollars but proxy for was to prevent class action suits from lawyers bring in the monkey have a public rights and i believe we have a nice discussion in our greed the difference between public and private rights about who's the right plaintiff to bring the case is there any doubt that monster is the right plaintiff to bring this case mr madoff has never explained who else might have standing to prevent an undisputed infringement district court gave nominal damages so that the punitive damages could be sustained there's no question the district court has the authority and discretion to ed nominal damages we cited the case that mr madden did not rip talk about discussion i don't understand why there's any debate that of course get the best of the change in the law and for this reason the punitive damages issue at a minimum can be remanded once there is a final judgment on all the economics which include attorneys fees the ratio also includes attorneys fees and potential harm something my good friend is not addressed so with that said i see my time is up i think the pilot has no further questions i will be se