old counsel at the ready mr de kock yes i might be announcing that properly yes your honor great and then mr byrne yes great glad to have you both on the line so mr conti with ten minutes and i understand you would like to reserve three minutes for rebuttal is that right yes please ok so mr de kock why don't you proceed injunction issued against was supporting the worldwide network of tens of thousands of volunteer doing work around the world including work related to this current pandemic this injunction issued however which caused all that work to fall apart tragically the injunction was not even properly issued there are multiple problems with the district court's issuance of the injunction the st concerns the district court's failure to balance the harms the record clear on this issue the district court failed to consider any balancing of the harmers acid as required this is despite the fact that this court cited to the correct application law inciting to the u s supreme court case d of the winter and winter is the decisive pace on this issue quote winter says in each case courts must balance the competing claims of injury and must consider the effect on the party of granting or holding the requested relief but after correctly citing the law the district court failed to apply the t r g there's not one single sentence contained in the oring d that discusses the certain cases it's not clear what cases those are and certain cases there's a new test and that new test not require a balancing of the heart but that's not correct we know from this circuit issue in the district court bail out on this council let me hit the pause button for you there and let me ask whether judge curious to begin has any question  at the moment ok judge lynch enough for now thank you then i have one question for you let's assume that we do need to balance the hardships as you suggest if we were to agree with the district court that your opponent has demonstrated a likelihood of success on the merits meaning you're infringing their trademark would it be appropriate to consider the hardships to your client which would of necessity flow from effectively their claimed right to infringe a trademark  in the nd circuit they well in certain cases you don't need to balance you know i'm sorry i'm probably not being clear i'm sorry i'm suggesting a soon to thing the two number one that the court has correctly found your opponent has shown a likelihood of success to merit on the infringement also assume that we agree with you that one ought to balance the hardships i guess what i'm asking is well i as that's it's a good question so that all the hardships that we put forth in the district court do a ride on of our use of the mark that was what was that's what  evidence i guess what i'm trying to figure is how link are the findings and likelihood of success in the merits and balance of hardship with respect to your client actively bound to one another and insure rise and fall together and i understand you don't think that they've shown a likelihood of success in america and i'm certainly not asking you to concede that point i'm just trying to identify what i think might be linkage between the district court case from the southern district of new york that deals with a contract that says you can have irreparable harm on a on a permanent injunction but you know f vernon you have ten minutes to thank your honor and may please the court michael byrne from late and then walk ins for team rubicon and i'll trying to trust the two arguments that have been raised that's part of this morning case the district court found in detail why we were likely to experience irreparable harm absent an injunction what what what p r g largely complaints about is that the court did not go on to use  the magic words of balancing the hardships in addressing the comparison between that harm and the lack of harm that t r g would experience but i think that to the extent that there is any uncertainty around whether the district court court made that clear so there's no question where the district court came out with respect to what it viewed the balance of the hardships to be where the balance of the harms to be in this case and to the extent that that the ultimate complaint from the other side is that the the harms on their side of the ledger would be legally cut knowledgeable i thought and please correct me if i have this wrong i thought the whole idea of the balance of hardships was for the court to ask itself  if i'm wrong here if i enter the injunction incorrectly versus if i deny the injunction incorrectly what who's worse off you know what where the risks lie here  and i wonder if looking at through that lens why why would you say that something is of course it's not legally cognizable to say i'm harmed because i'm not allowed to  violate the trademark anymore but i thought the whole idea was this is a preliminary stage and we're saying what's likely to be the outcome but we don't know for sure and we courts don't have to blind themselves to the likelihood of success in the case and i think that's shown by the fact that this court's standard for considering whether a plenary injunction should issue when there is a greater likelihood of success the showing  required with respect to the balance of hardships is less than what would be what would be required where there is a more modest showing of the probability of success and that's appropriate because in comparing the harms that are to be attentive to that you know and in a case like this both sides are going to point to essentially mirror images to a certain extent and in terms of the harm we're going to say that it's you know the party that's claiming trademark infringement is going to argue that the infringement is putting at risk our brand our reputation our goodwill the other side is going to say that absent their continue to belittle you to use the trademark that they're that they're going to experience some some harm to their to their business operations on and it can't be that that just ends up in a and in a wash and i think that that courts including this court have had validly considered likely to success and thinking about how that balance of harm shapes up and that's appropriate because again if there's a strong likelihood of success then it is appropriate we think to consider the much greater likelihood that we will in practice be harmed and also point out that in that in this case the harm that that subsequently rebranded themselves as other organizations nothing would prevent georgi from continuing to work with those organizations but by contrast to the extent that we can control our more our refuge our reputation our goodwill the integrity of our brand is at stake and that's critical not only for our ability to to bring in donors to develop partnerships but it's also critical to the communities that we want to serve you know our mission is a really important one which is to help communities that are experiencing disasters and you know when we're dealing with people in their most desperate situation those communities only want to bring in organizations whose integrity brand names reputation is is is unquestion archies ongoing use of the team rubicon mark and that followed from that from the district court's factual findings again this is not a presumption but factual findings that c r s to our eyes marks are distinct and recognizable and that georgi has an almost identical name operates in an identical space and markets to the same donors and partners and so it's it's it it's fairly common sense and self evident that there is a likelihood of confusion here and this court has recognized that the likelihood of confusion is especially strong suggesting that where you have a showing of the likelihood of success you can't simply use that likelihood of success and use that as categorically establishing a reparable harm it wasn't saying that where you have demonstrated a likelihood of confusion a likelihood of risk to your good will reputation and brand that that can't qualify as the showing of irreparable harm and here as this court said and in a number of cases including cases those dating remedy those violations and it proved itself unwilling or unable despite being warned in writing that that failure amounted to a material breach of its response ability if it failed to take any action to respond to us during the sixty days that had to cure that breach either  just talk d and i just direct your attention to you know what i'm talking about id your honor yes and each party i'm a little confused it seems like a very basic fact but there seems to be a  at your adversary say directing people to donate to to become global and your brief says no the link is in fact t m rubicon inc i'm looking at it and i guess the top half of it appears to be a link it's a classy dot org donate to team rubicon global is that not one at the top and soliciting a donation to your client what am i missing about that that you're reading it absolutely correct the only the only difference is when we analyze that those be ready in the context of the declaration declaration does not state if you click on that link it will go to that website this classy dot com where it goes i don't know i've never clicked on that link personally and that that's the only distinction that's helpful and i appreciate that clarification i kind of grabbed your time but if you want to take a minute of your one minute of rebuttal that remains to you to talk about whatever it is that you are hoping to talk about please go ahead and do so initial determination on the merits turns out to be wrong and of course if it turns out to be wrong she needs to set of how badly am i going to hurt the situation and we heard a lot of argument by posing counsel abo before you issue an injunction you need to balance the harm here in the injunction proceeding not during a subsequent month and a half later state proceeding and the state elements are not required bouncing the heart so we again we don't think that you balance the in the allegations were found to be credible actually that's a different issue on appeal a separate issue where the court abuses discretion in looking at the facts we put a declaration from the person that made final questions were you know final questions here or further questions here thank you ok let me thank both counsel then for very helpful arguments we appreciate it we will take the case under advisement and reserve