and i don't mean to get things off to a contentious fighting but i will ask neutron depo exactly what keeps this company litigating for now going on five years in this case  underlying in regard to your question your honor this last was filed in the southern district of texas in two thousand and four this was also being litigated with some other defendants well one of the other defendants moved the court to western district and the court granted after that and we posed that after that to court to go to the western issue we opposed but then in consultation with our client we decided that it would be best to not oppose it because it would be more costly to be defending essentially what was one lawsuit we got split  invented a one million key words correct and all that the record shows from what i gather is that made the seventy three instances of the use actually advertisements i believe that used the phrase insurance people unlawfully correct and so what is the big deal but your honor that's infringement now we're interesting lee we haven't even this case  litigated for a long time like like you mentioned we haven't even been able to get to the infringement part because the opposing side bankrate has filed i believe nine or ten dispositive motions in all these all this time and the last one well the nd last one was the one where you were here but today the motion to dismiss for lack of standing we've been arguing over twenty six and all these things we haven't even gotten to the infringer but to answer your question question your honor it's infringement that's our contention but we can't ignore those things up on the internet i'm sorry how long were the infringing items up on the internet  my understanding from the record is that they were up there for a while until bank rate was notified when bank rate was notified my understanding is bankrate took them down now to begin with let me add that when the lawsuit was filed in two thousand and fourteen neutron depot was an exclusive licensee of the mark the mark was owned by a c s i agency services inc then about two and a half years later  that now we believe that at the time of filing the new trying to people had statutory standing but in regard to what we're here about today it's irrelevant find out because we were an exclusive licensee and we have a license agreement and and that was allegedly reasonable complete now may be the proper terminology is not relevant because it is relevant at the time of filing it's relevant in all time what you're trying to say is that the later complaint totally superseded whatever went beyond it but we do have cases i'm pretty sure would say that once you put something in the record is because they were the bank rate was alleging in their motion that the time the filing rule applies we were saying it does not apply in sixteen french three cases it doesn't however we argue in the alternative we benefit is is there if we revive those other two claims it's because ok when the court dismissed the thirty two dollars section thirty two dollars claim in the section forty three dollars claim the only and during the deposition of the defendant's corporate representativeness to tar mr tar and needed in his deposition that bank it was bank rate general corporate policy to permit software algorithm to use others trademarks and then when the trademark owner finds out and complains they needed me back they don't fight and they take down the ad now under it would you get counterfeiting we are allowed under that lanham act to get statutory damages that's in the discretion of the court and it's i think the statute says seven hundred and fifty dollars to thirty thousand dollars eyes i believe and if it's willful the district court can go all the way up to one hundred and fifty thousand so you can get statutory damages under the counterfeiting a portion of section thirty  judge to hear the case of judge sparks it's my understanding will not be deciding this case anymore it will be magistrate mark lane i believe so the in regard to that is it may to finding the willfulness finding on this score judgment is a separate issue you're asking us to reverse the summary judgment on that saying that there's there's a genuine issue material fact as to that allowed to or is entitled to statutory damages if you can prove counterfeiting so you've got your regular service mark infringement claim but if you can prove what the statute says you then are entitled to statutory damages and we believe we can we can prove  for their patent cases that support their i think they cited some patent cases that support their view those are from the federal circuit and the nd circuit now should review those as persuasive since we don't have don't we don't have any cases on well here's the thing in those two is merit based that's what blanchard says and then mentor h s and the other one i cited in more sitting in this federal circuit and the nd circuit specifically say those are those claims with prejudice because there's ample evidence new trying to put has attempted to manipulate standing at the standing issue in bad faith that's all the court says and with that i see my time's  in order to bring a claim you trying to bow disavowed its argument that it was an exclusive licensee in its briefing before this court it seems to be reviving that argument now but the district court properly found that the license agreement w tantamount to an assignment which is what's required in order to have a statutory standing under those provisions of the lanham act so what's really in issue here is whether the assignment to the mark that it received in december t  teen can retroactively cure the lack of statutory standing that existed in may two thousand and fourteen when it filed the complaint it cannot as an initial matter the assignment on december th and is not assigned passes prior free that ended in may th what do you mean it didn't assign are you saying in terms of did not assign pending claims surpass claims that's right so if it could it it could have but it did not will i mean would the statute be if it isn't one of your arguments pretty much credentialed but you can't allow mid mid litigation transfers like this to occur and if you and if you could have an assignment of past claims wouldn't that effectuate exactly what you're saying is not a good idea yes there are so let me clarify my answer this layman could have assigned task claims it still would not have fixed the statutory standing issue in this  for the reasons that you mentioned allowing a mid litigation assignment would in appropriately expand the class of plaintiffs who can sue under those provisions of the land in that it would allow plaintiffs to file placeholder litigation to anyone who says they might eventually be assigned the market if you that's inappropriate a plaintiff needs a possessor rights before it can try to vindicate them in court allowing otherwise would lead to gamesmanship under delay and expense and the not have to reach that issue if the actual was signed in this case didn't include in the claims yes you are right i think you can rule on that error in that narrow issue because of the facts of this specific case and that assignment ok and we can look to where do we look me up here but it does not specifically call out past claims as if they may sue and there will be the ongoing owner of the market but it does not say anything about assigning past claims to the mark and allowing otherwise without a clear assignment of past claims would lead to the fear of duplicate litigation the assign or could come back and say that it has the ability to sue on those claims in addition to the new assignee claiming the ability to sue on those claims so it would need to be a clear assignment of the past plans that doesn't exist here but as i said even if it did exist for all the policy reasons i've mentioned it should be not not be permitted to cure a statutory standing problem that exist point was filed and as judge duncan pointed out there are other courts that have held that ability geisha assignment cannot retroactively cure a statutory standing problem the federal circuit is the main one because it is faced with these assignments so they were actually back to to before the date the complaints were filed the court still held that was not sufficient to retroactively cure the standing problem here the assignment is not back d terminology when addressing this issue after that case started coming into line and using the same statutory standing language but if you look at the federal circuit cases it does say it's a jurisdictional inquiry but they also clearly look so turning to the issue of damages the district court properly evaluated various factors that the th circuit has held should be evaluated when determining whether or not a discordian of profits would be equitable under the law and in the district court look to whether there is a diversion of sales for the plaintiff the defendant whether there was palming off and whether there is an intent to confuse or deceive on the st factor diversion of sales there's no evidence in the record that there was any diversion themselves but why don't you tell me what are the respective businesses of these companies in this whole thing is sixty three milli confusing to me factually you know for any i mean i assume the a number of companies nowadays are using algorithms to pop up with keywords right that's right so there must be trademark infringement going on all over the place at the present time actually your honor as peacocke mentioned this case never got to the liability phase but does not infringe milt many courts have held that using trademarks as keywords is not actually trademark infringement but going back to your original question about whether or not or what the business models are of these company directors not completely clear as a plaintiff's business mr peacocke can address that more directly in my understanding is they sold insurance products of some time bankrate was just an insurance lead collector so they would place ads on the internet for people who are interested in getting some kind of insurance collect their names and contact information and then sell those leads to a different company that actually sold goods which is the reason the district court found there could not be any palming off in this case because bankrate did not sell any goods or services so there was nothing for it to palm off as the goods or services of neutron people and finally on the issue of willfulness there is no evidence in the record to anyway the court found that there was no willful infringement because there is no attempt to profit off the point of smart here there's no evidence the bankrate knew of the mark and when it did learn of the mark as mr peacocke conceded it immediately stopped getting on that mark so there's no evidence of willful imprint and as this court has held in their taxable technologies case if there is no evidence of diversion of sales and no evidence of palming off the point of face so if the court does not have any additional questions i'll just mention your honor it's our position that the dismissal with prejudice is not a sanction but just a court never said it was issuing sanctions in this case this is the st time in this court that bankrate has said they're not asking for sanctions if the if a review of the record reveals that in the motion they filed they asked for sanctions they asked the court not only to dismiss the lawsuit but to do it with prejudice and they said the reason the court needed to do it with prejudice is because we had done a lot of bad things they allege that we forged documents allege that we fabricated documents they allege that we were hiding documents that's on the record and so for them now to come here and say oh there's no we don't even know what what mr peacock's talking about about sanctions what is he talking about the record is replete with stuff where they just constantly accuse us so if the difference is between dismissal with prejudice and dismissal without prejudice had it been a dismissal without prejudice what would you have done well as a matter of law since we were passed the statute lamb limitations even if the court would have done it without prejudice effectively it would have been with prejudice ok so but the court harmless error well no it's not am i respectfully disagree and here's the reason why the lanham act is built on equity went when the court decides the truth of limitations is not equating no but the court if the court reverses the standing issue and the in the section thirty two dollars claim goes back one of the which we were talking about earlier one of the damages is going to be statutory damages it's in the discretion of the court and the court can look at the record and if the court has imposed sanctions on us the court can say well you know what i'm not going to award much money here maybe set the minimum amount seven hundred and fifty dollars because of all these bad things that the plan to get what i mean she said and if so i'd forgotten a suit your client is claiming twenty two million dollars in lost profits well your honor and now you're going after seven hundred and fifty dollars well your honor that's what my client would like but it's a gets up to a jury i mean of course plaintiffs want billions of dollars but it's up to a jury and all we're asking for is that a jury decide that's what we're asking now in issue what we need to be aware of is there's two different types of actually three different types of standing prudential steps train constitutional what they're trying to argue is that we shouldn't be allowed to ret that falls under a constitutional standing let me ask you a question since you're the client of there are two companies here and both of them are apparently wholly owned by one individual so what prevented that individual from simply executing the assignment or filing in executing the assignment you know as apparently was represented to the court time after time after time wh number one your honor i know one represented c s i who was the owner of the court could have ordered that c s i come into the litigation initially the court didn't do that it's not for the court to decide who the plaintiff is it's for the plaintiff to decide that  the force of the trees respectfully we amended our complaint so what this court should the district court should have looked at the amended complaint in regard to statutory standing and in regard to an injury in fact which is what a constitutional standing would look at maybe the the the bank rate might have an argument about that but in terms of statutory standing they don't step for standing has a different argument different elements th