distinctive as to be entitled to trade rest protection without a selling of secondary meaning in what is indisputable a very crowded field of energy drinks all many using dark and aggressive and edgy things and that this can with so likely be perceived by consumers as a handsome monster prompt as to be entitled to trade dress protect drinks there's monster energy there's low carb monster energy there's monster assault which is somewhat different and there is monster chaos and we are forbidden by the terms of the injunction from selling any products in cans that are similar to those cans or similar to these weak and is limited to the word monster and the large claw like an secondly because neither the district court nor handsome ever defined the alleged trade  requires that the nevada judgment be given binding effect the district court believed that it had discretion to decline to apply non mutual defense of collateral stoffel we submit that is the discretion of the district court did not have we have different products involved in the two cases so that makes a little more problematic national judge in our our claim for not mutual defense of collateral estoppel doesn't mean we win because that was the rock star can which is yes a somewhat different can our claim is simply that the district court was required to give non mutual and your question was right to the heart of that non mutual defense of collateral stoffel effect to the ruling that their trade dress has to be the same in every case they can have a different trade dress when they want to go after rockstar and another trade dress when they want to go after us the trade dress has to be defined with specificity for the claim to proceed in the first instance the nevada court ruled that their trade dresses m and monster and we is your trade dress is the first inquiry and every in every trader's infringement case what are we dealing what are you claiming is protected i realize that the appeal doesn't necessarily preclude you from from making the argument but given the pendency of the both parties but i perfectly understand the the logic of an ordinary case that would certainly make sense because they're straight have a good economic damages their ongoing in their trade dress their trade dress is going to be their trade dress and it should be the same trade dress when trade dress ruling is always the first that we're not talking about anything beyond what is their trade dress not the fact that their trade dress is weak and a crowded market is going to be important down the road to the question of likelihood of you have you ever right to protection in what they say and a lot more than monster in amman i'll get to that in just a second and a lot of course said m and monster period and of course our product doesn't have an m it doesn't have it doesn't have the word combination as traitorous the discrete elements which make up a combination should be separated out and identified in the list that we have a moving target in the in the district court first there was the complaint which is that you are twenty  which in which hansen said that it's the overall aggressive appearance of the can and the aggressive color scheme of green on a black background later said that it features aggressive cutting edge color schemes with a black or black and gray background district court's order the court noted that they don't claim trade dress in the black and the black immigrant a black or black and gray background one of four distinct the bright colors unique to each variety a club letter m and the word monster in a font the district that it's harmful to legitimate competition to preclude a market of producers from marketing their products when there is no precise definition we rely chiefly i think on the second circuit's landscape farms decision because what the court case but national beverages products use neither the am nor the word monster what we have is a black can with edgy and aggressive or off we submit that is not the equivalent of the famous carl of those in automotive gold it is not the equivalent for jack and dampen and all sorts of the new cool and all sorts of frightening looking images all over the cancer that is the market and extending trade dress protection to such an ill defined to such an ill defined trade dress makes it impossible for a poor producers to make rational decisions about how to compete and what is by all accounts a booming a booming commercial market we submit that in the absence of a clear well defined trade dress they don't get past can graphic and like the van gogh extremely valuable to the plaintiff in this case the evidence is undisputed that they spent over one hundred million dollars developing promoting marketing the brand and  similar to van gogh very widely recognized you might not know the artist per se but we had to survey evidence submitted to the district court showing that over sixty percent of consumers when they saw the can graphics with the board monster obscured still recognize it as being a monster product so there was argument that there was no secondary meaning evidence that that's not accurate judge we're  itself on the sleeve craft factors which are allies in order to determine whether there is a likelihood of confusion and on the collateral estoppel issue as well although we disagree on whether there's discretion to of trade vest it's just said that there was a traitor and what the palace council just said is that even if the judgment were binding here that doesn't win the case for them and they don't win on likelihood of confusion simply call i cam and i'm referring to the very bottom paragraph here this is paragraph number three and the nevada court actually refers not only to the word monster and the am but then goes on to discuss the colors the color schemes of each of the products and refers to the black background and to each of the particular bright highlight colors now what the nevada court different colors doesn't say which colors right including the claw like amp and noted however that the most prominent elements were the claw like am and the word monster and went on to say that's what the rock star twenty one product doesn't have according to judge george in nevada he found that summary judgment was appropriate because he thought the crossbar was missing those elements the common elements of the green in the black heat said well that's not protect the ball alone and so that's the analysis that took place there but it's the same trade dress that's being referred to here and what we see the appellant's doing is they they want to par it down into individual elements and we've we've repeatedly said at the district court and in the briefing here what those elements are that make up the trade dress but it makes up an overall image you ultimately have to compare the overall commercial impression of the product this isn't just a formula where we go down and check off a ledge and say ok black background scratched out font etc and say well it isn't there you ultimately need to look at the products and compare them as the consumers would because what we're doing here is worth germany what is the likelihood of consumer confusion that's that's the ultimate analysis here and so what the appellant's want to do is they distract attention by focusing on s picture does a thousand words and you do ultimately need to compare the products themselves and whether we've given it the right shorthand or not the ultimate test is what is the commercial impression of this to set the products regard that were reminiscent of the or horror films he would seek protection is that what you're really after absolutely not your honor we're not saying it's protection on just some abstract concept or theme what we're saying is that it is that image that we create made up 's a slippery slope because what it does is it creates loopholes for the enjoyment parties to say oh well you know my i'm missing that one characteristic word when again we need to go back and look at the overall impression of the product and where i think you can take comfort your honor is that they have not been able to present evidence of anyone else in the marketplace who is any kind of player who we've seen product on shelves in stores who has a product that needs these definitions that we set forth the hadza four elements that have the same overall image has the product line of four different products with the different high like colors and there was evidence below of the top sellers in the industry having much different looks red bull number one of the market silver and blue background no monster imagery no following issues imagery whatsoever no jag you'd find out none of those things in common rock star number three in the marketplace multiple products in their product line the common element them a gold star with the letters are our rockstar background colors changing significantly between each of the different products none of the jackets fonts and that is the shortcoming of the arguments that this trade draft as been defined too broadly or somehow indefinitely if if that were the case then like in some of the cases that they pointed to for example that walker's anger decision that they eight competitors admitted to be selling hile lines that were in that same sematic category and those cases where the where the trade press on a really has struggled in those cases that have been cited landscape forms your main walker's anger those are products configuration he says the supreme court in the wal mart piece americans that the standard for trade best protection for a product configuration as opposed to a package and we're dealing with here is the case that the package nazi not the liquid they can sell whatever beverage they want and whatever color they want it to be and it's not our issue here but when you're talking about the package itself that's where you start to implicate these competitive concerns or you are you through trade dress law i'm starting to with when you try to protect the product the shape of the product through trade dress law you now run the risk that if you define too broadly you really are excluding people from selling a competitive product a piece of jewelry as in your me a an outdoor bench as in the landscape case a type of tile as in walk resign or here they're free to sell energy drink in fact they had a very successful rip it line of energy drinks that they were free to spell and judge graffiti was presented with a case where the equities were very strong this product this free product had only been on the market for a matter of weeks when we brought our motion they were about to expand nationally go to a trade show and go from a single market place in detroit where they test marketed the product to go nationwide and we were able to bring the motion in advance of that and present evidence that they were a very large company that within weeks could have redesigned different graphics and come out with another energy drink that they could have used and so the risk of injuries to them was extremely low whereas hansen as i mentioned before this has been a very successful product for them they have invested very heavily in developing the brand image and we're seeing instances of actual confusion already when the product had only been on the market for weeks and part of that was fueled in part by the freak cans actually being placed in the same racks in the shelves in the convenience stores in the racks that were labeled monster so you have not only the same background colors the same highlight colors you've got a actual picture of a monster they call it a fleet but the hard to imagine the judge think again i'd need to see the overall can however we're not saying that the monster alone is enough in our definition of the trade dress we have that it is the monster plus the clot out font plus we've got the word be confusingly similar the the decision by judge or a fee to be said that they're enjoying from selling the monster trade dress and anything confusingly similar with it and there's really no question that the monster trade words what the overall image is the secondly the context of that statement in the cetera but don't you have to hit the other day when you have an injunction to be able to say this is what you can do you can just say we have an image and we can't describe it but you're perhaps at it from copying it but your honor i think that you have to look at the injunction in light of the proceedings that led up to it i don't think that it you know vacuum the end when the injunction says you're enjoying from selling the monster trade dress  that i think it's perfectly appropriate to look at the very thing that led up to that and look at how handsome characterized that trade dress or how just repeating characterize that trade dress and determine that that's what they're enjoying from doing and here there's really no question they have the three cans that they were selling at the time of the injunction they know they're enjoined from that and so two interesting things that i want to point out one is at no point did national go back to judge or pheidias and say we don't understand your injunction we don't understand the scope of it you said the monster trade dress we don't know what that means and of course they didn't do that would certainly expect that in a case where the characterization of the traders was in dispute that the district court you would expect a judge or a feeding would be quite specific in saying i disagree with this characterization i think it should be this that i think would be a little and in a right high like color one of four highlight colors for each of the four lines and we know what those colors are it's the word monster and it's the word monster written in this unique font it s white font with a silver outline and i think the unique font because it's not something like a times new roman font at the hands of drawn kind of fonts and it's those elements and put together creating that overall commercial impression and when we look at three cam far more concordance between the free can and any other product that they've been able to point out of the market far more  it's black or black and grey you're on of the the ones some are solid black and two of them are solid black and two of them are kind of a speckled a black and grey mixture  that's the two background options and the freak has exactly that the black background it has the word freak written in a cloth out font of the monster we have the image of the monster and then they have these other words rage psycho mean yack on each of the cans those are written in a hand drawn kind of unique white font with silver outline and  the actual confusion evidence is i think quite instructive here this is not just attorney argument that this is likely to be confusing we had evidence of actual confusion and declaration submitted to that effect at the district court and what we're seeing the appellant to do is again they raised the argument which they raised below or should have raised below but they don't really deal with the countervailing evidence that we presented and they don't really explain how judge receipt erred they don't explain how it was a clear error for him to have weighed our evidence and come to the conclusion that he did going through each of those sleep craft factors including that there was a showing of likelihood of confusion and again in light of the preliminary injunction standard we really need to show a probable success defendants had just begun to use if we were really nipping them in the bud and in light of the confusion that was taking place of the hardships for far greater to hanson if the free product were to be continued to be sold and continue to be confused then it would have been for national to be enjoying it again they had other perfectly acceptable alternative energy drinks that they could have sold and in fact were selling at the time i went to a showing of confusion as to me i mean i think some people are going to get confused no matter what you know our national elections show that people think they're working for one thing and vote for another and the fact that a few people can't tell the difference can you can what do you have to show well you know i think what we have to show have to be weighed in light of the stage of the proceedings and i think for a preliminary injunction filed on the day the action was initiated and filed literally within a few weeks of the free product being introduced in just one market so we have a very limited subset of potentially confused consumers we think that any actual confusion and showing at that stage in the proceedings is quite persuasive now that might be a different standard when we were if we were at trial and then the product and then on the market for many months and had been distributed and a much wider spectrum but at this stage that we were at we had one declaration from somebody works in a retail store so not a not just the consumer who was mixed up though a mix of consumers exactly what we're trying to prevent again but it was somebody who was in the business who worked in a store who sold energy drinks and that person believed that there was some affiliation between us so i think when you're at that that retailer level and there's confusion i think this is extremely persuasive and we or you can say that the the evidence is that the strength of the trade dress with somebody else we may not have particularly broad right because in that nevada case we were talking about really the entire beverage market alcoholic beverages energy drinks even  district court there was referring to non energy drinks and just regular soda drinks so within our niche within this niche of energy drinks we feel we have very strong right but even if they are even if they are weak again just repeat consider that fact and he said in light of the the very overwhelming similarities between freaks and monster and the background history of the defendants knowing that we were changing distributors they wanted to go to the former distributors and try to fill their inventory with the monster substitute and promoting the product side by side on the same shelf that if you can show that there are in our kitchen analysts two i suppose i'd absolutely identical market channels literally same stores same customers same price same racks i think shelves but also it goes to show that the defendant was seeking to capitalize on hanson's will they were deliberately trying to step into our shoes in the at the distributor level and then at the retail level and then even  supporting his conclusions in our favor on all of those and we think that the ultimate issue here the ultimate problem that the appellants are raising is simply that the likelihood of confusion standard is going to leave a little bit of gray area that we just cannot define in order with mathematical precision exactly what elements what changes are you committed to making there is an overall image and we're creating this picture and in words and a preliminary injunction order it's not realistic to expect it to be in so much detail that they will know exactly what changes they need to make to avoid infringement in the future and please the court i think the most revealing thing that mr stengel said in response to a question from the court as to the specificity of the injunction is the the party should look at the proceedings look at the complaint look at all the papers and determine from all of these extraneous impression created by his product and that should be enough for us and by the way every other would be entrance into the market or current player in the market was not it's not only it's not only national beverage it's going to have to make gigantic fanciful king kong on our can without ever using the word monster and if i recall the pegasus case correctly it cited in our brief the law is that word picture equivalency is a question of fact then and that was never that was never resolved or tried and in the district court that because because a district court order i think of those are the most compelling proof that the district court's order is overly broad is that mr stengel wants to retry it here and talk about work picture equivalency and talk about reasonable likelihood of confusion until you have identified trade dress you can't even decide inherent to stick of this you don't decide reasonable likelihood of confusion this everything starts with that in which you have the rights and because they can to find that in which they have the right they talk about possible confusion in this very small area of gross point michigan and in our tests in our test marketing they say any likelihood of confusion should suffice but we don't even know what we can't make and no one else no one else in the market knows what they can or can't  believe i heard i believe i heard the arguments that that we're trying to break the trade dress down and trade dress has to be considered as a whole we know that and we've argued that in our brief but the case that we think answers that question most clearly is a kendall jackson case from this court because was only a small component of the overall trade dress in which there were certain protection it would have gallo out of the market for making wine to look like they were that have the california look at the court said no that's exactly the situation they may be able to serve right from the m they may be able to  rights in the word monster but they kind of take this overall impression of black and gray and just can't be us about the different kinds of cancers exactly right one of the campus has camouflage on it and they have different shades of black and gray now they talk about the colors an interesting judge repeated did not rely on the colors because well as we point out in our recent as we pointed out at the hearing the colors indicate the flavor of the drink are no different than than red for strawberry and sodas or or or greenish whatever the color is for lemon lime sodas that's what the colors are for the here what they're left with is an edgy overall look and whether you call it how we know what he called edgy no one in the energy market is going to know that which they cannot do without facing a lawsuit from these folks over here that's what they did wrong it's what the district court did wrong and they don't have to get any further the case kind of going further and should be reversed