that cosco was a willful infringer as a matter of law that it could not rely on the fair use defense and that it was a counterfeiter as a matter of law and that was an error for the principled reasons described in our brief i'd like to focus on three of those today st what was your evidence that contradicted willfulness and yes your honor so we discussed the good will of the bad faith and good faith issue in our brief and the key issues the court should focus on is st of all when you're considering whether a party has acted willfully that is subjective intent that's not an issue that is well suited for summary judgment and indeed this court held that in the  catalogue case cited in our papers were reversed summary judgment recognizing how important it is and what was the evidence st of all the term tiffany is an acknowledged descriptive term for a particular type of setting it has been for more than one hundred years it's been used in dictionaries in advertisements in books in magazines by consumers to describe this unique type of setting it's the only english language word that describes this type of a six  now if i'm correct the district court limited the claim against your client to the use of the word tiffany standing alone and did not allow it with respect to use of any setting more chance any style or anything like that is that correct so it's almost correct your honor place what's interesting is that when the word tiffany was used alone to describe the setting just like the word cathedral was used alone the word bezel was used alone the word  channel was used alone to describe the settings on those other means the court said that was counterfeiting when the word tiffany appeared with the word set or setting on the nd line the court said that wasn't even actionable how could it be that no reasonable juror could say that if any to describe these rings is automatically counterfeiting and at the same time that no reasonable juror could think the tiffany with the word setting on the  line could possibly be counterfeiting or infringement so it is true that a number of the signs and the signs are only record a number of them said tiffany setting some tests tiffany stop style some said tiffany set the line break can't possibly be the difference between non actionable use of a sign and counterfeiting now to go back to judge the vols question on the other evidence on on good faith it's likely to cause confusion i would say it's a question of fact for the jury as to whether it's likely to cause confusion it certainly is counterfeiting but on the question of good faith your honor the term tiffany was taken from the vendor sheets that our vendors provided to us for more than twenty years cosco has described these rings as being tiffany or tiffany selling rings just like many others in the industry did and still do zales and kay and other  retailers do so the question of whether that's likely to cause confusion that's a question of fact that the jury should have decided but if the question is good faith i'll rings they're not they were not segregated and shown by themselves they were intermixed with channel style and cathedral style and all the other styles that's exactly right your honor and that's why the context is so important as this court said in winfrey the quote kelly against when free case when you considering counter iting you've got to consider context and the context here is a display case that has many different meanings with all the different settings the settings were all identified on the signs in exactly the same way in no case was any of the rings displayed with a tiffany and company blue box that classic robin egg blue box that everyone knows about and so when you look at that context it's critical to recognize why it wasn't as a matter of law these rings by the way didn't have to finish stamped on them they had the manufacturer's name stamped on them which is actually required by law the boxes were beige boxes they didn't have to finish and they were in the box the only place to fany appeared was only on the signs these one by two inch signs next to the rings in the display case with several one hundred different products and every single one of the rings where tiffany was described was a tiffany setting ring not there is no evidence whatsoever that we ever used the term tiffany on rings that didn't have a tiffany setting now that the similar sign saying penciler cathedral on the others exactly and that's one of the reasons the survey evidence is so bad the survey evidence didn't show that context in context consumers would see that they were tiffany was being used just like these other words were being used and so when you look at it in context although i will admit it's a question for the journey as to whether some consumers may have been confused and there's very disputed evidence on an confusion but still it was not for the court to decide on summary judgment that this was automatically infringing that it was automatically bad faith reasonable jurors who know that the purchase of a diamond engagement ring is one of the most important purchases a consumer ever makes there's evidence in the record that grooms spend for months researching and looking for a reasonable jerk faced with the context of these rings would understand that this is something that is being used descriptively to describe the kind of setting and indeed plaintiff's own survey showed that more than sixty percent as as the survey was more than sixty percent of the consumers they surveyed knew that the term tiffany operates as both a brand name and as a descriptive term just like the term polo in a case that the southern district had the term polo shirt is a generic term for a type of shirt but polo is also a brand name for roughly men's apparel tiffany operates the same way and these are questions of fact that should have gone to the jury i do have a few additional use of this term was in good faith you know i do think that the context is key the plaintiffs talk about how we also sell rolex watches in cartier watches that is true but in the context you have to look at it's always in the cart a box practice cease to use tiffany to describe the setting without the additional word and and if i am correct on this row to all the people who had purchased rings where the sign had used to fany to describe the setting without the additional a this is a different point this has to do with more with the likelihood of confusion that only only slightly more than one percent asked for their money back forty three out of three thousand three hundred years and then when you have the numbers exactly right and those that is the essence of good faith that absence of bad faith at least an issue a reasonable juror should have had the opportunity to assess me doesn't necessarily mean absence of bad faith because it could have been it could have been a strategic move it could have been ok they got us now we're going to do the best thing we can to cover up but it tends to it tends to indicate absence of bad faith and certainly creates a question of fact so to one of the very very few i think you slightly overstated your argument at the start where you said that that issue's you said something to the effect that issues of state of mind are not amenable to summary judgment and that was true  when i became a district judge about over forty years ago but that was changed by the summary judgment trilogy and as the law is now if there if the evidence is sufficiently one  respect to bad faith or with respect to discrimination or whatever it is if all of the evidence goes a certain way and there isn't evidence really on the other side those issues are amenable to summary judgment so i think you overstated and i don't mean on this and your honor a minute it's good your point is your point is that there is evidence on both sides that's right in the and in india my this court didn't say that good faith is always a question of it just said intent is ill suited for summary judgment but it may be appropriate here there is all the evidence of good faith that should have been assessed by the jury of course the jury should have also had the chance to hear our fair use defense you know just like the pine tree shape in the car freshener case which was a registered trademark that pine tree shape for air fresheners was a registered trademark and this court held an air freshener conference in it that the defendant s e johnson who used the pine tree shape for its plug in air fresheners was using it descriptively and as that what the court sent is the public's right to use these descriptive images and words in good faith as to prevail over the exclusivity claims of the trademark or even though it was a registered trademark on counterfeiting it can i just asked a question on the counter on the waiver issue of counterfeiting i think your adversary makes the argument that you didn't rely on the stamping on the ring and that argument isn't available to you on appeal your honor we actually do address this in our reply brief but we have always disputed that it was even infringement so for disputing infringement of course we're disputing counterfeiting which is the heightened form of infringement and counterfeiting only applies when the market spurious when you're passing it off as the real good now we know what counterfeiting is i mean it's a crime it's the crime that happens on canal street when fraudsters sell fake rolex watches  and seventy two dollars footnote seven went to finney told judge sullivan is that to determine if an item is counterfeit you have to look to see if one or more of the tiffany marks appear on the piece of jewelry a physical inspection is required that's what a counterfeit is even though the e bay listings used the term tiffany in the sign that alone doesn't make it counterfeit you actually have to look at the product and they did not cite and we did not find a single case ever ever that found a physical item a piece of apparently piece of jewelry a watch anything to be counterfeit that did not have the actual counterfeit mark stamped on it it cannot be counterfeiting as a matter of law if the product doesn't have that the ersatz brand name stamped onto it or attached to it but entirely apart from that attire entirely apart from that counterfeiting requires bad faith and and you say that bad faith in this case was a disputed issue of certainly on the acts of summary judgment certainly on the summary judgment issue but i'm actually making a stronger argument on the counterfeiting point which is that it should be reversed as a matter of law the infringement case should be remanded for trial the jury should be given the opportunity to assess those but the counterfeiting claim should actually be rejected by  because the evidence here tiffany word was used on the sign but there was no mark on the ring there was no misbranding that's correct and it's not only the ring but is this court said in telling in twenty three context matters it wasn't on the packaging they didn't use the blue box when we did sell actual tiffany and company merchandise like tiffany in company sunglasses we displayed it with the blue tiffany box in the tiffany and co front when we saw the real tiffany branded diamond ring in japan in one of our stores in japan which plaintiffs put an image of in their brief if you look at the picture in their brief it's right there with the blue package that says tiffany and company so context matters saying for example this envelope contains a one thousand dollars or at least envelope contains a one thousand dollars and i'll give it to you in exchange for that ring and the envelope in fact contains tissue paper that doesn't purport to be dollars that's not a counterfeit in case it's a fraud case it's things it's not it's not counterfeiting has to be counterfeiting it's got to be the object itself purports to be the thing that that i where she said even if the watch was exactly the same it still has the mc name of the manufacturer swiss legend try max on it it can't be a counterfeit it didn't have the right crown for counterfeiting it's the entirety of the product stitch  and no your honor i'm sorry the trademark in that case was trying to max and swiss legend it was and the case wasn't brought by the maker of timex it was brought by other mars p k on the shape of the royal oak watch and we have images of those because it had the name of its manufacturer swiss legend and that particular watch was called tri mix within their line that showed that it wasn't being passed off as an autumn are watch these rings were stamped with the name of the remembering the record correctly so the challenge to it being spurious when we added the argument just the factual argument that below the art you were saying that the ring was unbranded and it is on appeal and maybe i'm just misremembering it's on appeal that you're focusing on the branding on the rings so i actually think the term branding is maybe the confusion unbranded in the sense that it wasn't sold with a nationally renowned brand it wasn't sold harry winston or a or or something like that but it does have the name of the manufacturer on it i don't you know whether they call that their brand it is certainly their trademark it may not be a registered trademark but the statute does require that when you sell platinum rings that you stamp platinum you must put the manufacturer's stamp on it so that consumers know who to complain to if it turns out not to be platinum so it's not misbranded i guess the very last point i'll quickly make and i'll reserve my additional time is just on punitive damages i would ask the court to look at pages fifty nine to sixty one of our opening brief it is clear under new york law that punitive damages are not available if damages for unfair competition they were your honor but the problem is that under new york law to get puny lives you have to show that you've actually been harmed that there's actually some compensatory damages and here tiffani put in no evidence whatsoever of harm and by the way that actually makes sense from a commonsense perspective not request that the jury be specifically charged that they could not award punitive without finding actual damages that's at least the argument that's being made to us you want to respond that's a legal issue your honor it's not up to the jury to decide whether compensatory damages are required as a matter of law to support a finding of punitive damages the jury was charged but you're not complaining them not being correctly charged you complaining about the sufficiency of the evidence that they should have been charged with punitive out all that that that i'm more trouble for i mean if you're complaining that they should have the judge failed to give the charge that she should have your failure to request it requires us to view that in one light if you're complaining that look the evidence as a matter of law does not support that's a different argument i had thought you were making the st and if that were the case your failure to request the charge is what i was asking you to address yes i understand  not we're not objecting to the sufficiency of the evidence of right alex what we're saying is that tiffany came into court and said we're not claiming we've lost any cells we're not claiming we've been harmed in any way that's compensatory rather we're asking for disgorgement of profits as our ward that is an equitable remedy that only allowed in the circuit at least as of now if there's been a finding of willfulness and so our point was if they've elected to take only a discouragement of profits remedy without showing any evidence that they've actually suffered compensable harm they can't get putin is under state law and we did specifically preserve that your honor and that's on page twenty eight of our reply brief where we talk about how that issue is preserved but the point isn't that the evidence was insufficient is that given the absence of any showing of composer or any claim of compensatory harm giving that they claimed some of the purchasers there was testimony from some of the purchasers who said something to the effect that they believed that they believe they had been told by costco sales people that these were tiffany d that's nonsense we put in the declaration and the testimony of dr wiener who who challenges the survey at great length the nd thing they cite your honor are far five instances of of so called consumer confusion and st of all i'll say that's de minimis in the context of three thousand three hundred dollars plus sales of rings and a jury should have had the opportunity to assess that evidence but what are some of those people say mrs bentley said i don't recall what the are these de minimis five consumers in the context of three thousand three hundred rings that should have been assessed by the jury and as far as the employee evidence goes they cite a single inquiry inquiry is actually evidence of non confusion that's not showing someone was confused that shows that they understand the term tiffany can be both a brand name and a descriptive use for the setting and they were just inquiring that's not evidence of confusion this is all the type of disputed facts that reasonable jury should have had the opportunity to assess and of the answers to that question the answer to the question was no it's tiffany setting the question was when you have  sign does it mean settings or does it mean brand it depends on what was right it depends how where the word is used sometimes it means sometimes it meant the setting sometimes it meant t never meant to fany brand every single one of these rings was not a tiffany branded ring real tiffany rings calling them to an injured pan we sold one real tiffany ring and it was called tiffany jewelry on the sign and one instance of that's the only one we're aware of your honor that's in the record never in the united states in the united states the signs said tiffany setting tiffany sat tiffany style sometimes just authorization probably no because the plaintiff won't sell their products to us but we certainly are able to get a watches and tiffany sunglasses through the marketplace and we are allowed to sell those as a matter of law but we've never sold to fany branded diamond engagement rings and the like any other products besides the sunglasses i remember them from the record any other to those actual tiffany products those are the only actual tiffany products that  the record reflects were sold by costco and when they were sold they were sold with the branding and you know i think it's quite deceptive when you look at the photo in plaintiff's brief they show the sign but they cropped out the box that was right there context matters and in context these are not counterfeit is a matter of law and you know i look forward to being able to explain to a jury why it's not infringement why it's not confusing as a matter of fact but that should not have been decided by the district court the tiffany trademark has been the subject of lawsuits and in foresman of the case going back to one thousand nine hundred and thirty two no cases ever found tiffany as a standalone descriptive judge of all your law review article from columbia law review discusses descriptive ness and at the heart of descriptive fair use is a word has to be descriptive cost goes case was misleading and judge took a long time to sort through the evidence she worked hard on those years i mean to be year to do this took to write the decision cost goes evidence was about to fany setting no one has ever called this ring a tiffany maybe people have referred to it as tiffany setting i would say to you your honors let's say costco decides to sell you know the things that you are saying have a lot of justification but i think they're beside the point of what seems to me at least to be the major point in this case the major point in this case as i see it is was the district court justified in granting summary judgment taking away from the jury the issue of willfulness and bad faith i have i it seems to me that using the word tiffany by itself on a ticket the describes a real has a substantial capacity to to to to to create likelihood of confusion i think that's probably true but the question the important question is that the judge took away from the jury every issue of liability including liability simple trademark infringement by taking away the the opportunity to present an argument to fair use to the jury because the judge said i have found a summary judgment that there is no disputed issue of fact it can only be found to be willfulness equivalent to bad faith that's the that to me is what's important here and you're not talking about well i will go ahead if you want to because let's let's start with the basic rings and they bought so many of them cosco bought so many of them that's why they could sell them so cheap close quote that's not the scrubbing a ring setting that's direct evidence pamela miller from work that i bought a tiffany ring and friends and family at that time close quote that's direct evidence of selling these rings as tiffany rings this court has said evidence of one person who's confused is substantial this is direct evidence of the individual purchasers that they were told these were tiffany rings by salespeople and cosco stores admission against party interest has that evidence been rebutted by admissible evidence no you once again are mixing apples and i'm sorry you said evidence of one is sufficient to show likelihood of confusion that's correct i was asking you about willfulness undisputed whether it's all on one side about willfulness and i don't i don't i don't contradict that the evidence that you are citing is evidence that tends to show willfulness the question is whether it's on rebuttal whether there's no evidence on the other side that would be that would create an issue of disputed material fact as the court's probably aware judge swain had a written decision in in october two thousand and thirteen on the production of the purchaser lists we fought hard for that cause we didn't want to give us the names and addresses of those people and told the court you wanted to conduct a survey of those people and we discussed in our brief their use of the telephone calls i could discuss that with the court greater detail much relevant to that here is they had the name and address of every purchaser of every ring cosco did not offer evidence from one purchaser who was not confused not one purchaser who testified that my sales person did not tell me it was a tiffany ring we also offered the investigative report said so these are not only this is not only testimony that goes to likelihood of confusion this shows that cosco is actually selling the rings as the sign said as tiffany rings so there are there's further evidence of of willfulness i guess we can also talk about what you would expect to find we can start from the following proposition i started with the proposition of somebody said to  and it's in that context that calling something a tiffany brain rather than a cathedral ring or a bezel ring has to be considered and it's in that context that tiffany ring refers to its setting now i understand that you know you have a very different view of it but make to make sure i understand what that is would you address that particular argument sure st of all there's no proof that there was ever within any fact then no it's not because the cosco has no idea what's in any store that this there's evidence direct evidence on the cosco does not know what signs are in any store at any given time they don't track this separately they produce and they produced plenty of sign records showed no setting style for time and again everything doesn't show the setting style most importantly the only real actual photograph of a sign in a jewelry case an operational store is the sign take is a photograph taken by tiffany's investigator the signs that are in costco's brief are manufactured they're not real and i know they're not real for one reason we got evidence on what a real sign looks like when signs are put on the floor at costco this was jean la barbera testified to this when signs are put on the floor costco they put it date on the sign so they can at least in the store know how long it's been in the store and i guess track whether it's all merchandise if you look at the signs in their brief not one of the signs has a date on it it all has the the the whole of the the and the why why why why so we don't even have dates they can't match the sign was in store and any time this is all after the fact but would have in this case was the lawyers had theories they never connected up to the evidence in the case and it took ju going through the evidence to do that and as this case was progressing and i was gathering discovery and taking depositions it was nonstop new arguments like whack a mole every time and if you're saying that that that that evidence should have been excluded because it was bogus evidence it created after the fact no i'm saying that the evidence that is the book signs that are there in the brief there's no proof that those signs were ever in a drawer or those were then used in the district court they were in the brig then they argued the same thing in the brief we had evidence to show that they weren't real that those signs were were manufactured signs for purposes of litigation you argued that to the district court he did and we argued that did you did you argue that it evident that it conclusion that it shouldn't be considered evidence but you didn't argue that to the district judge you didn't secure the exclusion of that evidence from the summary judgment consideration but i'm saying just involves you can't take that sign information and conclude based upon the fact that it's in a brief that those sought you just read yes i was whether it was in this was used in the district court as evidence not that it was in the jewelry case at the same time next to the tiffany signs at the same time that's never been argued by cosco cos never argued that every ring and i if counsel would say that here i could we could go and find that it's not true every ring does not have a setting style on the sign that they don't argue that they don't claim they sometimes put the setting style on the ring signs and when they said by the way the issue one of the issues was was tiffany setting the phrase tiffany setting an issue in this case the answer was no we're talking about tim free as a standalone and cathedral is not a trademark and baskets not a trademark they all have problems there's no proof that customers have any knowledge of the distinction or difference between a basket we have signs and the record say that have cathedral on them and channel on them and you're not contending that they don't use signs next to rings in some context what you're saying is that it is not there's no evidence in the record that suggests that every time there was a display case that had the sign said just tiffany that  it was also a ring in a display case that said cathedral or channel or one of the other styles exam don't we don't know how they were there's actually no evidence that it ever happened so there's no proof that it actually ever happens just that they actually have signs that say that but i say tiffany is different we all know tiffany is a standalone is a registered trademark one of the most famous trademarks in history you would expect that even cosco knowing that would have had some would have taken some the knowledge and education which of course is also not something they prove that people know the difference between a basket set then of butter cups and all those and why one would look different in the other and you would know the difference if you if you saw it but what about this  disclaimer no disclaimers in the jewelry case you want to go back and clarify i'm not sure i understand your argument correctly it sounded to me as if you were saying and maybe i'm wrong and it sounded to me as if you were saying that there is was no evidence on the summary judgment motions before the district court and there was no evidence that tiffany ever used a word other than tiffany's such as bezel cathedral whatever the other ones are as a  standalone to describe the setting of the stone is that what is that what you're saying i think you meant you meant cosco never used i'm sorry the cosco never never used words like like like basil cathedral setting words on a side other than when they did it with tiffany that tiffany was the only one for which they ever did that and that which i don't think i'm saying whether they did or they did not they didn't do it all the time could buy that association of those words understand that they meant ascetics not that's not the evidence in this case there's no evidence in this case that they put the the new setting style or that the type of setting on the sign all the time i understanding of of costco's evidence of costco's contention about it's evidence is that it showed that not every time but sometimes they had a standalone a word describing the setting whether that all or buttercup or tiffany sometimes they had it without very frequently they had it with the word set or setting other times they had it along and it was not just with back to tiffany that it was with right if i'm not mistaken i think you have in their declarations of that cosco include these that say the they took the settings names directly from the materials that produced by that were produced by the ring then her and displayed them on signs the same way for each setting and i think your adversary's argument is why isn't evidence like that enough to create an issue of fact on on good faith st of all to answer the question directly the evidence is that the vendors did not write those so the document is also a cosco document the evidence that we obviously we've we've decided to it in our brief is that cosco was communicating with vendors to copy tiffany styles using tiffany as a brand the outgoing communications with those vendors with judge swain judge swain found no proof that the vendors filled these in that's number one number two this vendor we're talking about is a small vendor on  cosco is the th largest retailer in the world costco is coming to this court came to the district court and said it's the vendors fault for calling these tiffany as if cosco doesn't know better and i put to this court i can't imagine a circumstance where i would put tiffany alone and assigned to describe tiffany's most important item the diamond engagement ring the one thing that tiffany is probably most famous for that they thought because this is not a question of mistake they thought they had an absolute right and they still believe they have an absolute right to call these rings tiffany standalone  and this argument but going back to the house point the only question before us is whether this could be decided as a matter of a lot summary judgment you're not disputing that because of the tremendous success of the tiffany setting that has become a generic item right tiffany setting is not something that you can claim anymore exclusive to tiffany it's not part of this case and i made it clear from the beginning to be setting the phrase is a completely different evaluation in tiffany setting by the way the tiffany is capital t everyone uses a capital t that being said the six purchasers who testified had never heard of it my own unscientific poll ther something never heard of it never the less this you were not allowed to pursue this claim on the theory that using that describing a tiffany setting violate any rights of your client right it was not that we were not allowed we sued for what we saw we did not see tiffany setting the tiffany setting argument came out in discovery when cosco said this is what this is and why we  and perhaps need to get right to it is that as long as there's any possibility that tiffany was being used as a shorthand for tiffany setting which counsel argues is an inference that can be drawn from context if that's so why isn't this necessarily a question of fact then i mean humane you may prevail you may have the stronger argument and i'm not sure that that well if you think it is as commonly as kiffin the setting for diamond engagement rings well but i think if you would the concept here is let's assume let's just assume for a moment that tiffany setting would not be protected let's just assume that i'm not conceding it i just assume if it's purpose this argument when you remove the word setting you remove any descriptive element and you're left simply with the noun even in the phrase tiffany setting which is a brand even a tiffany setting is a capital t it's not a lowercase t but my problem with that is i do think context would matter if if the person who was setting the ring we're talking to a coworker and saying it's a to fany in that context it might very well refer only to the setting because that's the only concern they have you of course have a much different argument this is you know the the sale to the purchaser but i'm knows and while i and we have intentional act there's no there's no disputing they did this willfully intentionally whether or not the intent was to deceive they say the intent was  that i agree with you willfully but that you know talking i understand so there is the let's look at what it would take take for example even really after the summary judgment a value or one of the judges who signed the dismissal order of their in a lot of the attempted appeal and all men appeal just during the pendency of the rest of the case cosco argue that its st amendment right to call these rings tiffany was being infringed look at the things that don't exist in this case there's no evidence no disclaimers in the jewelry case despite knowing that this word they're using intentionally could confuse at least some of the three of their stores no use of cosco zone trademarks and the boxes or the rings it's undisputed whatever it is this on that ring and obviously they blew it up giant i have the ring here if you want to see it i could show it to you can look and see how small this is but even in a real tiffany ring it's tiny you need to see it but it's doesn't say rb it's a diamond shape that's hardly a trademark that's just describing the metal content as a matter of law the diamond shape is unrecognizable there is no proof in this record that cosco asked a single purchaser if they knew how a diamond rings were marked so that if they looked inside the ring this is also not a case like want to take a you know famous brand handbag or something that's emblazoned with  a trademark that everybody sees when you wear it once you're given an engagement ring it's put on a finger many people never take it off and the trademark is not visible even on an authentic tiffany ring so the fact that you go to costco don't get the box say three thousand dollars on the ring and get to get a tiffany ring without the box the implicit communication to the customer specially from these sales people is we found these rings like we returns we don't know what everybody returned the ring for but you don't get the box the other evidence is you don't get the box until you pay for the ring same thing happens at tiffany by the way i've been i'm not sure i understand what you're referring to when you're saying that there were one thousand five hundred returns what happened there is we did there was an accounting done of the if i find it i can probably find out for you in a nd here this is the testimony thirteen ok so go to the bottom of the this is a mr hesketh who is their financial person so go to the bottom of the units column where the sales end assuming it goes to returns afterwards i just want to have the total number of units sold returns on the dollar value of the returns of the voice answers so the negative unit total is one thousand five hundred and one dollars so that's returns now cons go rounds of one of these warnings of the rings of the purchasers that run the purchaser list of rings that had to be in the zines the rings that were an issue in this case so we don't know why everybody but but i would say to you that it's not just forty seven dollars now they sent the letter after letter you're talking about difference to just a you're not you're you're not disagreeing with the statistics that your adversary gave me with respect to how many returns there were after after that cosco wrote to the people who was two thousand five hundred letters were sent they say it was question whether it's eleven thousand or two thousand five hundred because this could have been a bigger problem we just don't know the letter itself did not describe that the sign if it was it's before any of this dispute arose people who bought the rings and then returned them right so i would say if we're going to talk about empirical evidence there's empirical evidence as well that when people got the packaging and didn't get the blue box they immediately returned the ring and they didn't keep that we don't know that but we also we also don't know when it's going to be broke and people decided they they wanted it different ring and get any any number of possibilities the only point is the only point is to say only forty six people were confused is a misstatement we don't know that we know that they have actually now the number that returned their ng in response to the letter that's what we know after litigation started and that there was a hard fight over giving at trial it came out that they offered signs dated march rd team and the testimony of mr has got the trial was that he didn't put a block on the account until and thirteen so as i said at the outset counsel has made many arguments throughout this case we were required to gather evidence in discovery we all know that a motion for summary judgment is the time to lay bare your proof let's talk for just one second if i can about the lack of a survey from costco to the extent they didn't do one or the did one and it came  badly we never saw it if tiffany if we if we agree that tiffany standing alone is as we all know it to be the world famous having been protected forever trademark that describes jewelry from the famous company and that's what the standalone word means then you can't use that word descriptively because it's the name of the founder of tiffany charles louis tiffany and it's an arbitrary trademark arbitrary trademarks cannot be used descriptively this is how cos is you have to read closely a lot of times what possible says this is what they say page nineteen of their brief to describe their defense quote cost those use of this generic term on display signs to accurately describe the rings have this unprotected design is a lawful fair use closed book so it's cosco that claims the word tiffany is generic and as being generic it gives them a right to use it descriptively that's their argument in order to prove generis was i'm you need to do something to show or to counter the survey the tiffany didn't showing likelihood of confusion and that nine out of ten people surveyed thought tiffany standing alone meant the brand they put they put on th use the word style to describe wouldn't be able they used the word tiffany they used it in what seems to me like a generic to describe the setting and the generic description of the seven you would have it's my understanding you would not be able to we have a trademark infringement case for putting up a sign you so it's tentatively standing alone or with more than with more than tiffany standing alone or just i buy swingler is that they have a lot more than ten phonies standing alone they're using it in a what seems to me to be a generic manner of using the word tiffany tiffany in a generic manner as a description of a style you don't contend that you would be able to prevent that to you if but two different things here i think over time the tiffany standing alone the answer is yes i think i can prevent that i think i should be talking about i'm talking about whether the word tiffany concern as a generic as a description of the setting when it says tiffany setting that's not a trademark infringement what would you have to prove you're using the word generic now in order to prove generics is a mother feather comes it's the what consumer to prove consumer perception matters so we grooved consumer perception we  confusion we prove likelihood of confusion we have actual and likelihood of confusion so i would agree with you just that if generics isn't was the issue and that was the only issue below it really what this fair use argument has kind of evolved on appeal below the argument was they may counter claimed that the tiffany work was generic and the use and more like the sentence here that the generic use of tiffany is a fair use what you're saying but then you have to prove it's generic and that there's a complete absence of proof  paper and all kinds of things everybody walk in the store is not sophisticated and this is a locked case at the entrance of every store and it's their most important but the evidence is it's the most important part of their store because it shows off some of the high end stuff so cosco knew that there was a high likelihood that when it went to using tiffany standing alone in the signs that it was likely to confuse ok if they had to be we would say it's like we can take yeah yeah so these are the things that you don't see in this case that would be evidence of good faith the kinds of things that you look for in cases when you find whether someone's acting in good faith no disclaimers in the jewelry case to say what you're saying just that these are not tiffany this is the style of the ring no use of cosco zone trademarks on the rings or the boxes so that because putting aside the small jewelry manufacturer nobody heard of these or cosco rings they're made to cosco specifications the evidence is  absence of training all the things that would have suggested a good faith and to the extent that there is evidence of good faith it's it's misstated or de minimus the cascode declarations by employees saying we were using th  mark descriptively aren't enough it's not enough for them to declare that they they took the setting names in correct in collaboration from the vendor to describe this the setting and the arguments been extended so i want to and i don't want to cut off any questions but i also wanted just to alert you should thinking of taking about four more minutes and see if we have additional arguments to make sure you've made all the points you want to make turning again willfulness point we also established on the affirmative side the copying the proof of pervasive copying of tiffany styles the providing of inflated appraisals with these rings that approximated the price of real tiffany rings and obviously the sales people telling them these rigs and telling customers these were to flee rings the theory of the motion for summary judgment before judge swain was that at the conclusion of discovery we laid bare our proof and one against the other we see if there's an issue to try cosco says that it should be allowed to present its state of mind to the jury as an argument but state of mind is proven by corporations through what people said or did it is undisputed cosco doesn't know when this  st started it also doesn't know who st started to use this so it has no proof that ever connects all of these theories from dictionaries and historic us that the person who did this in fact did it for that reason that's a failure proof also the the the evidence was there the evidence was undisputed that cosco  to finalise that point so where we have this is not just a case of the what you really end up with at the end of this case is cosco saying we were using the truncated tiffany alone to describe tiffany said that's their argument the evidence is one there's no proof of that is they don't know who did it do started it they don't they can't connect any of that to a human being as lawyers making that argument nd sales people were saying otherwise and if this was not and they were copying  that if this court's going to create some exception here that now you you know that because it said it on the signs and not on the rings and that the context of a membership warehouse where everything is sold at a discount and where  the implicit message from the company is that we find these things all over the world that now we're going to say well signs alone don't count if there's no branding anywhere else i would say that's a very dangerous precedent as i can see a lot of people driving a huge truck through brands on the side it's not on the ring so what have we have no proof that customers even know how this would be they didn't put that proof in and most importantly we're talking about of a retailer of great fame cosco when they tell their customers in signs and by salespeople a ring is made by tiffany why would the customer not believe cosco especially when its entire business model is centered on selling brands for less why would they not damages instruction so the one that was used was the one they asked for we let it go we argued over it but we used theirs at closing their lawyer said it meant the following quote you drive a car one hundred and twenty miles an hour through school zone and run over a four year old child and killer that might meet the standard close quote that's a decent standard and the jury still came back and awarded punitive damages and cosco at trial presented all the same explanations a rguments to the jury they had mr palmeri there he had to bring settings this was an adjoining unanimously agreed that this was reprehensible conduct by failing to propose an instruction we were deprived of the opportunity to negotiate what it might say or even to agree and while you have a jury impaneled that would be improper judge swain also said after trial that the proximate the order profits was a proxy for damages and that's i think that that's probably abus discretion review standard and whether in fact that would be under new york law even equitable relief can give rise to punitive damages so this is there's certainly enough there and in closing i just simply want to say to the court the challenge of the case has always been to get to the evidence the summary judgment motion got to the evidence it's not fear radical it's not based on speculation we deposed the senior executives of the company we deposed all the people relevant who had information they don't have any proof of their state of mind through an is been a very extended argument and we certainly appreciate the court's interest in it so let me just try to respond to just a few of those points i think much of our response is probably clear from our brief in my prior argument mr mitchell started by saying what if we told people makes we never did there's no evidence in the record that we told people we sell tiffany gave us he did cite a single consumer who said an employee told me that being was made by tiffany one example if that employee said it we're embarrassed by it and maybe maybe we should have done a better job making sure that employees didn't mislead our customers if see if indeed they said this one was made by tiffany but the overwhelming evidence that we had signs that used to finish as the selling naming just like all the other science that's being considered by a jury no one else to consumers argument that the evidence you put into that fact was created for litigation rather than actual science from your store and he want to respond that it's just not accurate your honor and i'll tell you why if you look at mr hess declaration which is that page eighty three o fifty four he explains the process these signs are in the computer system they are printed for each product and it is true that the signs in our brief these were reproduced from the computer system but there's also substantial evidence in the record and i would point the court on the hard drive we submitted to the cosco file twelve thousand five hundred and thirteen there's evidence that we actually use channel setting actually use diamond channel channel wedding ring time embezzle set i understand that but if you've just told us you agree that they were created out of your computer system what we don't have then is evidence showing how they were would be displayed in a case on a given right there is there is a photo in our brief unfortunately ron i think it's probably not legible on page eight but it just gives you a sense of how there's many signs next to many different meanings and we have a large number of rings that use channel cathedral bezel that is in the record what we don't have your honor is in each individual store on any given day what was the exact mix of that but there is substantial evidence that we sell things with all the settings and all of those signs were used and the suggestion that we manufactured evidence i must say is absolutely poorly taken here and that was not before the court and it not proper now what do consumers are doing to us that if the evidence that was presented to the court on the summary judgment motion had been presented to a jury trial of the issue of liability and the jury had rendered a verdict that we find no willfulness and had declined to order punitive damages and so forth  that would have to be reversed by us we would have to reverse the judgment because we would have to find that a jury could not reasonably find absence of willfulness his record that is the remarkable proposition that the plaintiffs bring to you today your honor now very very briefly i'll ask you to look at pages forty two and forty three of our brief because you'll see what consumers actually said when they called them they called our customers and asked them and consumers said oh no it said tiffany style being it wasn't made by tiffany consumers know that these are fact questions that should have gone to the to the jury and i think maybe the last point i just want to make  looking at what the district court said she did the district court looked at the evidence about good faith about willfulness at page fifteen dollars sixteen cents of the special appendix she described what our evidence was and then she said but that untenable and i find more compelling tiffany's evidence that is not the role of the district court on summary judgment it is not up to the district judge to decide is it ten of them and when we put in our criticism of their survey she criticisms and what she said was well those criticisms go to the weight yes they do but what did she do she then weighed the evidence and she found in favor of tiffany that is why summary judgment was improper and