good morning your honour's keith wesley for the plaintiff in appellant and cross at the lee memory lane inc i'm here with my colleague corbin barthold and i would ask with the court indulgence to reserve five minutes for a bottle which are you on a thank you your honor and may please the court this appeal boils down to a single overarching issue did the plaintiff memory lane get a full and fair trial on his trademark infringement claim we would respectfully submit that the answer that question is no memory lane had to try this case both a without the best evidence of trademark infringement and b in the face of irrelevant highly prejudicial character attacks against its founder and yet even with both eyes both hands tied behind its back we nearly won though more specifically there are two primary reasons why this court she concluded neutralises primary reason number one that memory lane was the same as or affiliated with the jury knew about that information didn't they the jury knew about misdirected e mail or misdirected information but the jury was allowed to hear your honor was the number of misdirected communications and the general description and the vehicle for that evidence was our founder mr cohen and the reason why that is significant your honor and the reason why the protocol that the district court set up is both unprecedented and adequate is several reasons frankly first it's precisely the content of the communications that proves that consumers were confused if the defendants had stipulated that the plaintiff had received two dozen misdirected communication from confused consumers then we might be ok that everybody would be in agreement that there were confused consumers and the jury is told the number they don't have to read the actual content what is it would give me an example of an e mail what is there in the content that would show anything other than that it was misdirected your honor i'll point point you t page fifteen of our opening brief here's an example this is an actual email received by my final memory i quote i'm having a problem with my classmates account and i believe this is part of this company who can help me with my issue the memory lane website does not have a way to contact you please send me a reply with a way to ask about my problem so what that shows they thought that e mail sent to the wrong company well what it does your honor is we get inside the head of the consumer we know that this consumer is specifically saying i believe that memory lane is part of defendant put an expert on the stand whose name was jeffrey andrea and he said i read these e mails you're still indicate any confusion these are just mistakes and so we have an expert witness but we have an expert witness who's telling the jury and as the court knows expert witnesses oftentimes have a veil of more knowledge more believability than the average witness and he's telling the jury flat out these e mails don't say what the plaintiff's founder is saying and the problem on top of that was that our the expert these e mails that he just characterized they were literally sitting right behind him on a on a card in my in my exhibit books the expert gets on the stand he says these e mails are these are showing confusion these are just it's mistakes it's like when you go in the phone book and you you're going down the list and you see judge i think the question is what did you do in beyond that to say i asked your honor now how can i show this witness these e mails i want to show the witness and show the jury what they actually say and then we can find out whether or not his character is a let me ask you this counsel you had a witness you had an expert witness did and your expert witness took the stand and said i read the e mails they showed actual confusion right and and cracked and i'm assuming that you had a chance that happen explain like what what did you used to form the basis of your opinion and laid it all out to the jury well my expert was assuming the fact that there was actual confusion he wasn't characterizing the e mails and cells he said assuming that there was this spate of mr ector communications and assuming that you find that this was actually actual confusion that i find that the plaintiff memory lane has been harmed their expert went to step further he said i review these e mails they don't show confusion at all and so in the face of that i think under just basic rules of evidence basic cross examination i should have been able to get into what the say three or four occasions i tried before trial i did ok the actual marked exhibit may not have gotten it wasn't their testimony where the text was ready and a part of those e mails you know you're on the text was not right in the district court made a clear distinction she said before trial and she stuck with this ruling throughout the trial even after that even after their expert that she said the best you can do plaintive is testify about the number of communications and the general general description of them so that it was somebody what is there about the email from such a such a person of this date that indicates there is no confusion when they misdirected it well your honor would you were you able to ask that i don't know if i was able to as examination to engage in deposition questions and open ended questions that would have allowed him to that expound upon e mails that i was let you see how you undermine experts just that that's how you me let me ask you this i think i agree with you the doors are open and i think you have to be able to cross examine somebody about confusion in about specific documents but what bothered by is that i don't see how any particular e mail you point out to me even the one you quoted shows more confusion than any misdirected in that's what i'm looking for what is there in those documents you were prohibited from using shows my either being called the or quantity confusion different than this directed even on your honor i'll try again with not have to sign problem over what is it that's just showing that that i missed direct this because i think there's a relationship between classmates in memory lane how is that any different than that that that goes to the heart of the matter their whole premise in this case was saying that everyone gets misdirected communications arc our client is names united on line we get communications from united airlines that it doesn't matter it's just mistakes it happens every day read their closing argument this was the centerpiece of their case and the centerpiece of my case was no but my question is this what does that e mail tell you other than there's a belief by the sender that there is a relationship between classmates in memory lane or that they're one in the same and if i speak to memory lane i'm speaking to a classmate what more does the content show than that that's exactly what the content shows and that's exactly what it is that the horse knows no more than misdirected may are well according to their expert you can have misdirected mail for a variety of reasons it doesn't this is i'm not i'm not challenge i think mr directed mail is confusion right i  think it's confusion but but how is the content showing a different or greater confusion than just the misdirected mail well your honor i'd i'd point to a whole line of trademark cases there's the r case out of the ninth circuit there's a series of other cases we say in our brief where this type of evidence the actual communications is admitted into evidence as a matter of course i i'm i'm struggling with the same thing the judge murphy's trying to get at i don't know what argument you could have made that you didn't get the opportunity to make by the exclusion of the actual contents of the e mail so that the significance of the that communication the fact that there were some e mails from customers who contact that memory lane that fact was in evidence ample evidence both experts testify to it so whatever arguments you had in closing o  cross that you wanted to make you want precluded from doing that right at the district court acknowledge and recognize that the the fact of the e mails was not irrelevant and there was testimony as to that fact so you happen that the existence of the misdirected e mails however many number there is and you could have crafted your case based on that right and if they had stipulated that there were forty e mails and those forty e mails showed exactly what judge murphy is saying those were forty consumers who believe that my client was the same as or affiliated with their client i would agree with the cord that's not what they did what they did was say e mails show actual confusion yes and you got to know you got an instruction from the judge that on the sleep craft factors correct absolutely right what i was relying upon was a second hand here in my client's founder somebody who was savaged by them on cross examination and i just just well but there seemed to be no dispute about these misdirected e mails that they existed and what not just you just wanted to get in the content you know that when i looked at what the just record judge did a looked like she was and she didn't put it in these words but you know some of the the content of some of these e mails does not put classmates in a very good light sorry classmates and unite on line other life start off with just want some clarification about the testimony and what occurred during the examination of our expert jeff ranters testimony was that he disagreed with their expert mr stewart's testimony that the e mails and the messages showed confusion here but he didn't say because of the kind and he said because there wasn't enough information in the content and i believe that what the court showed it was under spirited and that these e mails occurred the but the e mails indicated that all seen in emails indicate was that at the time they were sent the sender thought they were sending them to classmates or united or the united on line company that was clear but by the composition and the content of the e mails there's  unspirited and quite a bit of the content actually got out as we mentioned in our brief those e mails were primarily of the forty most of the vast majority were complaints about billing i didn't get but the type of confusion i believe that's important here your honor and i understand your point i believe is whether or not somebody is confused at the when they have information about who the part two parties are what i'm sorry that confusion is as  source of origin correct i agree and that's source of origin is you have to understand what the what the businesses or the products of the two parties are now in this case it's clear that  when the individuals found out what the two businesses were let's start with the classmates people sending computer sending these messages making the phone calls when they found out who memory lane was the plan if they were confused they were confused as to source that was recognized by memory lane itself when they started in the phone calls the way they handled it was when they got a call and they realized it was by a classmate's customer looking for classmates they they they stole them were a baseball card company and they did that because they cleared up then the person knew it was there they contacted the wrong person they had to consumer witnesses the trial just to burton was the first what he was a classmate's customer he contacted them and when he was told that they were baseball card company he knew he had the wrong company the other consumer witness was a mammoth a mr merkel he was a regular and of a long time as a matter of fact classmates customer he contacted when he he was looking for them he was a hotel when i went on a computer they wasn't used to when on line and he hit the entry for the classmate's nostalgia content site that said memory lane the minute he saw but he knew that that was wrong that that wasn't the company he was looking for the there was no confusion as to source there was there were mistakes made and maybe they were confused by two names in that they thought they were sending to the other party but once they learned who the two parties were then they knew there was no confusion and that's really what likely to confusions about you have to know you know what the two you have to be aware of the plaintiff they work nobody knows where the play if that is three thousand customers and once they learned as the plaintiff knew that they were baseball card company there wasn't going to be any like them they were going to think they were connected looking for sports memorabilia no no and when they heard it was sports memorabilia they knew it wasn't who they wanted so they didn't think there was a connection once they knew one thing is the facts about who the two were  position that you know there was likely to confusion was really pretty unreasonable based upon another admission in addition to the one that also had to do is doesn't way they were baseball card company to clear up in confusion or avoid confusion really was the when they wanted to business there was already one play of memory lane went into the sports collectible card business there was a short distance away here in california another business called memory lane in manhattan beach that was in the same business into is it you're trying this loss of memory on classmate we're not trying to lawsuit you want to relive everything from years gone by with two outfits and close to each other in california regarding it's called memory lane we don't know how many instances misdirected mail there was which is very irritating we don't know anything about that so i don't see how you can compare the two it is true it i think it just shows the word hold up as a hold up they were hoping a jury would hit it on something and they didn't really believe there was a problem here let me ask you question let's assume for a moment that it was here for the district court not to allow told the content they were told that they were requests to cancel they were told that they were requests to the bill they were billed improperly that they didn't get their yearbook and if you're presented who testified to these being sent i think was from the i r s a bill being sent by a supplier but and also i believe a few of these messages were actually shown to the jury were published they were supposed to be also the same as about his about his communications that there wasn't enough evidence he didn't sit and say you know what was in there he said there wasn't enough evidence he didn't he concern was about the negative information that's contained in the e mail well part of it was yes we also believe that because other that for the reasons i said there were mistakes but they didn't show anything about actual confusion the content would you know they were irrelevant and they didn't show a state of mind of confusion for somebody classmates say you didn't you didn't you i want to cancel you didn't send me the yearbook you have overcharged me shows nothing about state of mind and confusion state of mind if you're going to get around the hearsay objection and it showed nothing of a state of mind so they were they were excluded i think about as experts have reviewed it and talked about him so it's easier for  thought that the we try to keep out all of the evidence and the judge in our book actually gave them a benefit by saying you know you can you can talk about the number and the general nature we thought that the whole thing would google story stories there on google about things that you know what had happened that were negative about classmates finds things like that and they kept asking why weren't you concerned about that were you concerned about that or you concerned about that and that was part of the basis in addition to the things we mentioned the brief frozen in the door biased testimony of the argument that they really brought up the idea of damaged reputation which justified the cross of mr cohen my question is was there ever went through already about there are there admissions there are witnesses there was any basis for confusion the dilution that was you know the manhattan beach prior use or the lack of actual confusion and their belief that the content they never presented what the revenue separately were free the one they deal lump sum as well i think that that solved that you know they didn't meet the requirement and they knew that there was a history that lump sum that most of the hundred nine million they put in for the lump sum was money that had been been made by classmates alone long before memory lane was ever used for years and years and years there was no way that that was attributable to  that there wasn't a reasonable way to present it through and or through their expert licensing no no no facts about comparable products mean license much less buy them or even their position on a license instead  expenditures they just had their experts say well here's how much both parties have spent on advertising that's a of any prime facia showing of a justification for corrective advertising and i believe i'll save the rest of my meets the reasonable whether it's unreasonable what was done we think the liability we think that the different remedy requests that i just described or also unreasonable based on the facts in the case and what they what they put in simple i agree with you i just got to say it's hard to articulate the difference i believe but it's not to not say that there's any difference in light of what arcane fitness you know have what you present is so weak that you know it's really different than what we normally see which are sitting under abuse of discretion you know because we don't believe that the court applied octane fitness and we think they think that the analogy to walk in order copy machine isn't a political that's one step process i got them i've got it i put it down i've got a copy here i got pulled i got my copy i take the copy i turned into  ancient chinese proverb the faintest ink is more powerful than the strongest memory that proverb goes through out our rules of evidence and that's why we're allowed to show juries documents not just testify about them testify about what they generally say but allow the jury to see exactly what was going on here there was no reason for the jury not to see the m communications if there was any threat of prejudice it was equalled by the probative value and this court should not say as in the first instance that there's a rule for all three problem when the district judge never did that was he just counsel just noted though that was part of their concern in their motion for a limit for their request for an unlimited ruling no doubt but yes it was it was a yes but the district about the relevancy of the negative information to meet that certain portions of the e mail i don't recall if we made that offer but this actually dovetails in the judge murphy's question which was there was always a threat of tarnishing to our reputation the reason why it wasn't a centerpiece a trial and the reason why it wasn't part of our brief to this court is because in limon a we we re excluded from presenting any harm to our reputation attorneys or is the damage serious or confusion three d it was not in this case from the get go though i disagree fully your hon we're not supposed to present briefs in our excerpts of record but i would encourage the court will back and look at our briefing on the eliminate motion where the district court could did not allow us to present any reputational harm evidence because it has been part of this case it should have been part is case the reason why wasn't part of the trial was because we're precluded eliminate categorically i don't so want to we haven't we haven't touched on it but i did want the court to focus on the cross examination of my client's founder questions like in fact no kids got taken to any amusement parks with the money that was given pursuant to your marketing scripts isn't that correct did you ever gamble fifty thousand dollars on pi go the five to fifteen percent went to charities the others went to lifestyles ferrari's gambling alike correct trademark infringement case between two businesses these questions had no place at this trial and there's a reason why the federal rules of evidence so strictly constrain if you object to all these questions we objected the series of events i question was did you object to all these questions too we did i'm not sure we never would you didn't object to all these questions well when you say all these  every time that an improper question in your view was asked did you say your honor i object we did at the first question that we believe crossed the line we had moved in lemonade to limit that evidence when they crossed the line we said objection rule four zero three relevant the fairly they did ask some questions along this line that you didn't think were over them that's correct i think under the rules and under that this court's case law when there's a prior conviction that relates to fraud they're allowed to ask about or they're allowed to raise the fact of the conviction the length of the sentence and maybe there's one other maybe the general nature of the crime but the law is clear that they cannot go behind those crimes and talk about salacious details and when they did we said objection relevance for all three the district court said categor you open the door she eventually sustain the objections and she and she eventually did but as this court has held sometimes questions themselves can be so salacious so irrelevant that they taint the entire proceeding and when we're talking about fifty thousand dollars games in a trademark infringement trial i can't think of a more distracting more irrelevant more prejudicial gambit than that and how do you deal with  that was the frankly your honor we we far from minimized it and we we told the jury that it was bad that he should have done it we are not trying to minimize the crime those two points were the closest that came to minimizing the crime and you'd have to make an inference from of the let's assume that you make that inference then under the case law when you open up that door they have the right to respond to those points that it didn't matter that he was young that he wasn't really affected by this gentleman that doesn't allow a free for all allowing an inquiry into all kinds of accusations many of which frankly didn't have any foundation whatsoever the district  this down as soon as it started and we know why opposing counsel was doing this he said in closing argument that you shouldn't award money to somebody like mr cohen do you want to address the attorney's fees district court then reviewing to do that while of an attorney's fees motion if you go into this court's case law generally where there's a reversal of a denial of fees under the lanham act it's where the district court didn't explain its reasoning it's just categorically said these tonight here we have sixteen pages of careful reasoning the other side said octane fitness was not addressed in fact it was addressed it cited in the court's order and in the conclusion the district court says i quote under the tally of the circumstances either play this theory of liability north claims for relief stand out for their lack of merit that quote is directly from octane fitness this report