dismissing contests as trademark infringement claims and related state claims misapplying the ninth circuit is holding in the in the pen and further resolving contested material fact issues on summary judg copyright claims we're concerned here with this boiling shrimp in that you've seen on our papers it was created and nine hundred seventy thousand nine hundred eighty six and therefore it's governed by the copyright act o because united states had always been very particular about requiring that there be a mandatory notice of copyright on a work or else you could lose your right to the copyrights section for all thought i was the savings provision and there was only one change made to it as a result of the burn conventional quote implantation act it's preamble was changed to replace the language the emission of the copyright date of the berne convention in the implementation act of my nine hundred eighty eight the emission of the copyright notice described in and then it continued and underneath there were three  copyright owner could use to save the copyright the event that copies were mounted on notice those are not changed at all in this case this contest is relying on the first one that the notice has been omitted from no more believe that that misconstrues the change and is that i was with the purpose of the berne convention implementation at what exactly do you define the property in the proper universe would be all other copies distribute t public just find out what period of time for now there are cases have dealt with this and different ways some cases have examined the numbers right through the time of trial in this case that would be we're looking at you have other options one is the time you think we should get your writing our opinion for right now this is if i was sitting in your chairs i would pick the time of the infringement because in this particular case that's what's fair the  here can claim that the notice somehow misled and in this case there is evidence in the record that there were tens of millions of copies with with notice that had been published of the world at the time the infringement started here the in ner then you were before because we're limiting the scope of properly notice copies we can compare to determine whether the unnoticed copies are relatively small so in fact the district courts in allegedly infringing parties different determinations of whether or not the right have had lapsed or have been forfeited for failure to hear proper notice i mean suppose yes case eventually you can stick to to make a registration of the copyright if you wish to enforce it and in this case there was a registration in one thousand nine hundred four and that is a quick condition to enforcement but it's not required in order for the copyright itself to be valid as long as you at least in the copyright act in one thousand nine hundred six as long as you send out enough properly notice copies your copyright without any cases  me how may times there's in court they have floated out there and get picked up by some member of the public before it is notice you're on of these stash itself doesn't provide much of a guideline just talked about relatively small and compared to shaquille o'neal i'm relatively small the cases that have considered it have dealt with situations where there were four million copies say in the four and other cases they deal with much smaller numbers and but it's all i think the focus has to be on relatively small under the circumstances that particular case and there's no bright lines other nine hundred thousand or it could be less than five hundred thousand somewhere in that range so even then we believe the court picked a number of one hundred forty four thousand and you know that's getting close to what's relatively small but i don't think it's fair to cut off accounting as of march one thousand nine hundred eighty nine because i don't believe the statute provides for that and under circumstances here it's unreasonable if you discover that you've got this on mission you can overcome it through these three ways one of them includes registration but that option wasn't chosen presumably your client has to count on the first of the of the three and a final relatively small but why wouldn't be relatively small based on the universe that existed at the time of the discovery that it moves we we left it off here we've got to do something about that that sounds like they are pretty close to what the district court dates calculations on just  until the infringement came up and people started lawsuits here i don't think anyone really discovered the omission now discovery in this area is this sort of a term of art it's not just you know sending out something and saying it doesn't have another sonnet it's got to be something more than that realizing that you've made a mistake and in this case we really don't have any evidence no record to serve as a basis for drawing a cut off and i certainly don't believe it's march one thousand nine hundred nine i recall the notices is a minute in violation of expressed written directions by the copyright owner and that particular defense was explored at length but at this point time we didn't have a written contract with the advertising agency that was specific enough to allow us to come under that provision but that's why you've seen that noise in the record a trademark owner could recover the profits from the infringer in windy penn and the there was expressed finding by the district court that the trademark infringement was not intentional on the other hand we had the big pen company which was a very big growing company and they happened to use the term auditors on a pan and lindy pan had a sort a trademark rights over the word auditors used on a pen in that the ninth circuit's review of the facts there are those kind of like a reverse confusion type case the course found well there's no willfulness here because when the pens really got i mean fix that nothing to gain image was taking this image on its on these packages within the old master heartens and and the evidence as i've looked at it there are references from here in there saying that there are people among the current defendants excluding locke or who may have been aware of the packaging but it's hard to make a case it seems to me that these defendants were were trying affirmatively to use that or in some cases were aware of it other than through the fact that some of their employees open up the and it was approved for that sort of products and we think under the circumstances a jury could reasonably conclude from that evidence that verdicts acted willfully there was another defendant ms that a company promise means that i was aware of us and at the time he became aware of the infringement he knew that he had this product in his warehouse from a locker and yet he didn't direct anybody to go inspect the warehouse to find out whether in fact that the infringing so he just kept selling it because as he tests fun stuff that it was just a small item to him it didn't matter it's that kind of evidence we believe it would justify that and there's also evidence that these defendants that these individuals knew about contestants mars sort of the circumstances your honor so i believe that it made the difference by the found it but as to a try to truncate my arguments but i will introduce what we are going to do by lawyer who's going to argue them briefly i am going to lead off and spend seven minutes or i hope less arguing the copyright issues and i will demonstrate i hold that any contest the copyright in the boiling shrimp image was abandoned to the public domain by its failure to timely ethics a proper copyright notice before before publishing a not insubstantial number of copies that all of the defendants had stopped dealing with locke or the only proven infringer as soon as they were on notice the contest of claims and finally last but not least mr going ormus that i will spend our final minutes demonstrating  the contest or fail to meet its burden of showing with admissible evidence the actual use the actual infringement by any of these parties are at least most of them which to dismiss require dismiss well all of the far as favorable to appellant as they would have you believe in fact here is essentially no evidence of any use of the copyright notice that hall or at least one  properly dated so as to be treated as notice until one thousand nine hundred eight and while i understand the court's concern for defining a proper time period in  the record you have those i believe eight publications amounting to if one is charitable hundred forty four thousand copies and if one except the testimony cough that is to say the pox as having the proper date and the proper notice but that's the first time for the first time that the evidence of the box itself is the admissible she had no personal knowledge there's no record all the personal knowledge so that she couldn't she could testify but it's like me testifying about the weather what the weather isn't today though i don't have personal know and i don't have the position which would get me personally and that is why i said there is no if i should have said no admissible evidence in the record on that point but if you look at the just the magazines for a  one you might be able to debate the issue of whether one should construe it one way or the other but number one the statute reads as though and you should treat that that period as the defining one and second one doesn't need poor old five a one to save the copyright holders right if the copyright owner would but register in five years under forty four zero five eight to you or she could save his rights and that's court jeffrey miller on behalf of the defendant and happily fishery products international incorporated i would like to just address very quickly comments made him in relation to the judge's decision in the district court to summarily adjudicate the issue of the equitable remedy of accounting a profit i think counsel at least from what he said here this morning is correct that the standard in this circuit is very clear under lindy p but the key to it i think when we take a hard look at it from the record is that when we're talking about lindy pan remedy for equitable remedy of accounting the profits what we're really talking about is not issue of compensation it's an issue of curing an injustice what the law is designed to do is to prevent an intentional wrongdoer from profiting from the wrongful act and when you look at the pen and what it says it says really two things that the intent requirement has to have a deliberate intent to deceive some kind of back faith component to it or something of that nature and second it has to have a calculation to exploit the relative trademark that they're talking about another words there has to be a benefit something in it for the alleged infringer that's a problem in this case what we have here is a situation and as our justice thousand five hundred cartons and seven or less of those cartons were open for quality control or to take a look at the product we don't have a situation where there was notice of the infringement and i think the big thing is when you look at the big picture here giant block and it's all grandparents all together and it's just one big thing yes yes and so what we're dealing with here is a situation where the ninth circuit is very clear we have a definitive standard there's no reason  to differ from that and particularly in this case where the evidence is so clear that these are innocent parties down the road that simply did not have have the knowledge that you would require in this standard again and equitable standard injustice where the plaintiff doesn't suffer any damages and the defendant receives no benefit there's no reason for the re contestant does also keep raising the idea that this court should in fact grant an injunction a permanent injunction against apple lees the problem with that argument is that although we can slade gorton admiralty and see court there is no evidence in the record that any of those businesses ever distributed any infringing packaging to anyone the plaintiffs position throughout the case was to hypothesise of it with respect to my client mazeppa we don't dispute that mazeppa did receive from one shipment that was seized by the united states customs that shipment was seized and we have no reason to believe and no evidence in the record more importantly on  judgment motion to show that any of the other shipments contained any of the allegedly infringing packaging so without that the plaintiffs missed a key element of its case on a summary judgment motion that is proof of the actual infringement as to those defendants and  when you do what mr p autosuggestion look at the defendants individually you see that mazeppa and the others that i mentioned there is just no evidence they point to evidence with respect to mr when it comes to whether he knew there was a problem out there and certainly he did he had a shipment that was seized but when mr mazeppa did have his people inspect no infringing packaging was found no infringing packaging was ever reported by any customer and most importantly throughout the course of the case in the district court the plaintiffs never put forward any proof that any intrusion packaging from the defendants i mentioned into the hands of the consuming public without that there's no infringement and the case can be decided on that basis alone and there's further if all statements from locker were infringing and defendants had it well you can assume that defendants infringed but plaintiffs can't even prove that first which is they can't prove that all shipments are infringing which leads me to the feed's argument which only applies to  the one slade gorton judgment applied the correct standard but she added a new standard which was that c should be not nominate and she did this without any basis and all that was in the record the party simply asked for actually infringed intertwined with all the claims throughout the course of the case that was something that legal fees were expended on the entire case throughout the entire case as we look at whether the copyright issue went away earlier which is an argument that the plaintiffs raise that's certainly not true because you will see in each of the summary judgment rulings that judgment elo was forced to rule on it once again because the plaintiffs persisted in their copyright claim they didn't drop the copyright claim they didn't even notices would still be good the second point with respect to both of us here we've got someone who pirated contest the signature image they did it for a reason in bangladesh they are in bangladesh and the problem here is one of the defendants receive these pirated goods see them they unfortunately are stuck with the responsibility of not distributing they have to deal with the guy in bangladesh