word only so we're do you get that limitation from and why is that binding or persuasive upon us say or i think when you are looking at the language that the supreme court nearest and traffic's when it was talking about  red formulation when it's repeated in politics as well when something is essential to the use or purpose putting meat on the bones of what that means is something that courts have struggled with over time but the principle that i think  from from looking at all of those cases is the courts are trying to figure out how to find a tween what's properly in that in that arena of trade craft or trademark and with properly in the arena  gov looking to determine when there is something that is really truly a useful product feature it's not just to use a product but the design itself is conveying some additional utility beyond the utility of the stamp on an oreo cookie where does the meant dovetails with the earlier precedents we know we've got the american teen court they were asked to focus on whether it's related to be utilitarian function of the product or feature if it's if it's not if it's essential and i don't see anything in quality if i see essential is one way to show that it's functional but i don't see that that's the only way so why should we be focusing on is this not something that a cli incidental or start configuring the mulatto cookie in a way that is very long slender in his very consistent with where you've got to get the pokey that's very different is that people said maybe then we get into consumer confusion but absent that it's got its own shape day letter explains when the product configuration is the overall product configuration of course analysis does not look at whether one particular feature might be functional or not there's a real question about  i'm not living right here  and i'm sure you hear the whole point i think the most important thing to start with recognizing is that the uncoated portion is just one part of the product configuration but you know you cou and someone else is really trying to rip off your reputation by shipping it the same way so you want to poison response to that the st is that the question about whether this is a basic food shape that it i think is what your honor is acquired secondary meaning in our product and there is a record evidence and a summary judgment briefing from bruce isaacson who conducted a consumer survey that found that hockey is actually identified as a brand size to make it what proportion of chocolate or other ingredients to use all of those are design choices that companies make if a company makes a design choice acquired secondary meaning in that particular design choice there are dozens and dozens and dozens of products that are out there in the snack food industry there are dozens and dozens of products that combine best it and top but many of them do or have greater protection but not all of them some of particle of there is not record evidence that showed that the decisions about how to produce coffee flow from flow from really utilitarian reason oreo was stamped with the oreo logo is to branded as an oreo but when we talk about the reason why yours is shaped the way that it is you know it is quite important that you use advertising materials th advantages you don't get it on your fingers they're utilitarian properties to the patented design elements here and the utility patent or the ultra slim but any factoring method is not relevant to most of the pocky oprah slim is this tiny fraction of them so of those four factors you do have their alternative designs available but the other factors make it seem like they weigh in favor of you know this is how you've been selling it this is why you keep up this is the history of hockey it's in your cup your clients corporate history of pocky as described it has a handle it it makes a phone snap and that's just as connected to the use of the the risk there is love so this to extend it i mean that was traffic's look let's agree that the the if we think the traffic's is a red herring for the distinctive touch claim that was was a part of us but in terms of the factors the other factors here can you help us yes i can let us start with the advertising and i think it's very important when you look at advertising to focus on whether the advertising is actually advertising the product or the design of the product based on a circuit earlier this year the question was whether a chicken feed or was functional there was a patent that specifically claimed a particular funk a particular focus profiles or the chicken or and the and not this design and the function the friend plays a very particular role in decipher ing those two flexible steelcase that lucky placed same point or with a p improvement in having a gallop leading edge to a bell fastener because it would reduce where it would improve the life and that's exactly what the advertising at our confine is better because we have  but i don't think we mean i was well supplies when i read our old rd circuit peden in american greetings we treated the writing on the tummy of the care bear as functional because it helping children express their feelings it wasn't just that it was a stuffed animal but it had a particular additional benefit and it's a particular graphic use the court or the want to convey certain feeling so there was a sense in which the advertising with promoting this particular design as carrying a huge so is carry in benefit even in the if animal world and then in the end our world that we're working on in this case documents that  pepperidge farm or someone decides to take a biscuit not soup closely to your paki that would yield consumer confusion but a distinct shape and they decide to put it on a all right see what you want to say is let's say we have to apply the incidental arbitrary or ornamental just right i'm not sure you would agree but if we could take it or you don't claim that having a portion a somewhat longer or somewhat thicker skin you're i think that if they made their take longer or faker or curried or made the coating a different person out of the actual product then we wouldn't be in that's not entirely accurate because what we're focusing on is that the overall look of the product is identical so a piece of that is there you start the same uncoded percentage but it's also that the entire product looks the same it's the of the stick and otherwise with the same thing i mean it doesn't appear that their packaging looks like you're packaging the packaging looks different let's say they extended that and they kept the stick and everything the same but they put their name prominently on it so assessing the cost and quality of the pie which street is non presidential but still we can you know you can argue it to us was persuasive but sweet street did not take your narrow approach to what's essential retreat said the six f there's a reason why they did the six folds right that with the just turned out to have the optimal ratio of crust for baking and stuff like that so on a really literal understanding of essential you wouldn't say six fold is essential but about the way you made the pie crust was about the way you bake it the way you put it to get there it didn't have some kind of ornamental or identifying pretty dress quality to it so your honor i think st of all that the court show that this is as fast as you did question that could go to a jury and and was free to argue to the jury that it should find that it functional were afraid of argued to the jury that there were significant design choices that went into that length and we ok i think that's important because there are numbers of number of cases including including american reading but also quick billiards case a millennium last case functional features can be incorporated into a trade dress so long as the overall product that it's on a configuration is claimed is not functional in its entirety and has no other case i think are plenty it's a look at or helps make this clearer every chair is going to have a background that doesn't mean that every chair is going to be functional just because it has a functional element you're looking at the particular design as it is claimed in the trade press and here our claim is it's much bigger than just a handle and also work with disputed fact haters barbecue potato chips of course things sometimes get on your hands but that is not the purpose of a snack food product with health with what you said earlier about it sufficing that something works better someone can eat those other things but some fraction of consumers are going to choose pocky because they don't want to get it on their hands or because they want to have it up in a box so now you could just littering back towards a narrower understanding of essential alex  let's challenge declaration paragraph twenty nine to thirty at appendix twenty seven funny to do so again there are disputed facts about whether the overall combination here is functional and in fact is both of our e testified you can eat hockey under almost every circumstance that's an ordinary circumstance reading and you won't get chocolate i just like you don't get your hands when you necessarily any product i my time or a bottle ok thank you mostly covered in chocolate that's what we're talking about those are the features so it's very important your honor your honour's their look at their trade dress ok how they don't find it there is no limitation on the  its legally irrelevant whether or not something else secondary meaning or not a product configuration is a matter of law legally or relevant to whether or not it's functional that is essential to use or purpose of the product or relates to the cost or quality of the product that's because of a public policy that you can only protect product configurations through patents and copyrights if it's not protected by pat your copyright it usually in this is from the su like that i don't know if there's a utility and i don't know that those companies out that configuration serve some utilitarian option i don't know what the founders of those products that we chose this product to be this way because it's it's easier to eat but this is what we didn't know your mom or something judge b was she said earlier that it's undisputed in this case we know the answer to that question in this case go like those old internal documents saying we chose the biscuit stick because it's easy to hold and we covered it partially with chocolate so there's a handle and that's the end of the case it's let's go through the advertising m to your pocket cookie sticks as an quote easy to gamble stack generously coated with a high quality chocolate except for a small portion one and creating a candle making it easier from all time tasking without getting chocolate on your  in the beginning here dipped in chocolate leaving one end of the stick quote the handle they are unquote on your website pocket what's the response all right all right we get the point you get off  things that struck me in this case is the way that the district court's opinion was just repeatedly missed characterized with regard to what it did with the utility and i and i want to go through this because it's any limits to the dimensions in your tray growth when it was the answer's no well ok maybe that goes to what we draw from the registration because trade dress protection is not limited to was that a resistor to just affect who has the burden of proof so maybe we need a beam is older its response would be something about well you know the rounded handle here and the tapered edge there and the rough length in the rough diameter maybe that would affect how we apply the registration  you ask the plaintiff what is it there is your transcript identify it force please so we know precisely what it is you're calling and that's what we did in this case and then we followed up and said what are and forty three a nd point that i want to make relates to the patents that mr donnelly was just talking to you about this is very important and i don't know if mr dabney thinks that because you guys are not the federal circuit of claim in a patent that called a product by process claim only claims made by a particular manufacturing profit maker by any other process it's not claimed in the patent this case is like carolinas there was also a manufacturing patent and that's really the only other case that cited in the brief that involve the patent like ours one that claims a method and then the product that results from that method that is very different than there are ab so lute way limitations if lafayette wanted to make a competing product that was an inch and a half wide and engine a half long but only part of it was covered with chocolate so for it was look nothing look like this one as opposed to having her being sick or being center being larger being smaller all of those are designed for is finally on the p c a registering a ham sandwich i think you all know that's not true but it is worth noting that latte itself stuck to register if products implicitly telling the p t o that it viewed its exact identical product configuration as nonfunctional and a piece here rejected it not because it was functional but because the liko already had trade dress protection for that exact product configuration so for all of these reasons as a matter of