little directed at my colleagues moving the admission area and evers who's a member of the far and in good standing with the highest court of massachusetts she has been my law clerk this past year and so on personal knowledge and with great confidence i will say that i am more than satisfied that she possesses the necessary qualifications will hear argument today first number fourteen one zero three six terry against newman mr covert whenever you're ready nder notre dame in notre dame or you are asking to overrule notre dame i'm trying to understand your position about notre dame and its force with respect to that requirement that is a very good question what to do with notre dame the in one thousand nine hundred three i cited this in the brief the board originally thought notre dame did not change the law and there's like four or five cases that they saying notre dame brought no change then they changed it developing this for protest and they've been using it for thirty years and made several arguments below that the test needed to be altered you can see the language in the opinion of eight nineteen seventy six the labels of the discussion in notre dame about the right of publicity the labels that is victim it's difficult to say whether it's victim or not clearly notre dame affirmed the board's dismissal so what grounds did they do that and it board thought it was it had to follow the morehouse case and in doing so the board said it has to be at least a similarity under two d plus the element of intent that was the operative t is if you have the west virginia to page thirteen seventy six left hand column the final full paragraph in the first sentence were talks about  and my impression was that what the court was saying in notre dame was that the two parts of the tests that were described as being what medtronic said had held one likelihood of confusion and intent that is what the second part of that is what did not need to be decided but none the less likelihood of confusion was not shown and therefore the to a claim failed so it would seem from that reading that notre dame still kept the morehouse standard intact and therefore the board has been wrong for thirty years well the question i guess is does is a likelihood of confusion or that what the notre dame court is saying is that at the bottom of the first column of thirteen seventy six that the middle east there is no proof of likelihood big huge and and therefore no one waiting for proving that element of notre dame as is being continuous you have to find that closeness more so than a likelihood of confusion but they dropped out the element of an leave a mistake and we associated and  i mean all about it would seem to be different as an issue let me just ask you ask you about that and i guess it has something to do with a confusion that i've had in thinking about your particular case is it right that a false suggestion provision goes be on the likelihood of confusion as to the source source of current activities  that at issue in two d and protects even against a suggestion of some kind of association that wouldn't lead people to think  that the challenger was responsible for the current activities and i guess what i was thinking about your particular case is you have to identify a false suggestion now i'm assuming for purposes of this question that mr newman's use of operation rescue does convey to many people in the public some kind of association with mr kerr by way of lineage through some kind of organizational family the problem with that is that that would be true so that can't be a false suggestion i don't mean kind of direct organizational descent but  is that mr terry is somehow involved with mr newman's current activities that you assert to be false but it doesn't seem to me that today is limited to those two things and so if it's not limited to those it is not limited to the current ones the notre dame here part three the part you were just talking about was addressing a real issue and setting a standard in resolving  real issue was the university's good name potentially harmed by some suggestion of affiliation even if it wouldn't consider confuse consumers into thinking that was the cheese products were being sponsored by the university right so i'm failing i'm having a hard time seeing why the language about unique and unmistakable can be viewed as o my challenge would be that they didn't apply the room they made up a new to us everything in the boards but it is sufficient that the board says a half dozen times we've got lots of evidence to come to the finding that operation rescue is not uniquely or and or a mistake openly associated wit kerry i will hard time seeing that the that finding is lacking and substantial evidence of court so the question is if that if that is a  eleven i started it just in the middle of that paragraph right after the case cites to jackson you're not sure and teaches the sentence after that there is no question that in no it is not what notre dame says explicitly is the defendant mark point to the plaintiff there's a big difference what the board tested was rand as saying the mark has to point on this take a plea to the plaintiff that's correct recitation of the notre dame's right that it's ok and but they never examined whether newman's mark points the best evidence of does newman's mark point to the plaintiff the best evidence of that is the web page he submitted worried he thought he was telling the the g a o this is how i thought he wanted to point at least that far you could say that when the research essentially usurp terry's identity i'm not making that argument i'm arguing that when he said no to the p d f this is what i mean by the words operation rescue he was referring to the organization that randall terry founded led and disbanded it was his stick over here and you used actually your rebuttal time what why why is the unique uniqueness and mistake ability language of notre dame a proper interpretation of what would seem on its face to be broader language to the folks suggestion i think that is an argument that the president says what the president says or can you claim was when someone persona is is invaded when someone's identity is stolen by a trademark is supposed supposed to have an organization in which there were two found independently of authorisation either of the two falsely suggests an association with both of them and therefore as to neither one uniquely i i uniquely would seem to exclude the case where a use of a trademark falsely suggests an association unmistakably would two people i think if you have two the ruining two peoples personifies you think is outside to a because it's two thousand and one i think there's a possibility that if they h persona i think that would be treated as a unitary right and that would be considered unique but i think if you at the point that you have multiple people all having the same persona i think at that point you're outside the scope of saying your falsely suggesting a connection to that person because that person over there also has that what do you understand by the use of the term unique in this context is it that the word john's barbecue sauce doesn't point uniquely to one person but john peterson junior's barbecue sauce does is that it is that old you think that uniquely means here or is there something more to it i think when we talk about unique identity that yes if you're if you would like to use john's barbecue sauce i don't think that every john has a right to stop you i think that if you're trying to put on peterson's barbecue sauce that john peterson can take issue with it and i think that those are also the sort of claims that are more properly broader perspective to say th not be unique but it still on mistakenly points to a person and if it is not unique but on the sickly points to a person would it still be alive elation i think you can probably make the argument that demand misuses may not c against uniqueness but that's really not be the case we have here where there's an instance of literally hundreds of other organizations that were using the snake to return to judge serranos question about multiple people and the context of clooney where they have the only relation between them is with respect to the salad dressing they would still it would uniquely point to them i'm really for them in that's i see what you're exactly how you're reading the word unique probably more important than the uniqueness i'm i'm sure there probably are hard cases dealing with you know to paul newman's out there but that's very much not another situation we have here where we're talking about literally hundreds of other organizations that are using this name and it kind of is raise here though isn't it if we can we could conclude that operation rescue stak points to randall terry because he certainly has a long history with the group but then there would still be the problem of whether it's unique or not and it seems like that's a big portion of the board to rethink as you point out hundreds of concluded independently that operation rescue did not point to mental character that instead pointed to the movement of the whole transitory was simply one number an important one but the name pointed primarily right and i took that to be consistent with the whole tenor of the decision that said operation rescue was not a single thing associated with a single person and therefore it would suggest many different things but i didn't remember that there was ever a place where the board said mr kerry is not among the things that would be suggested by that name third was the founder of operation rescue which is a statement of historical fact and that it was perceived by the public as a simply something on his rosmer that it was not perceived then when someone says operation rescue it worth noting that knowledge was specifically held in the notre dame decision to not be sufficient to show the country even though it was granted the defendant in the case of notre dame and the notre  impression of goodwill among the country that was not sufficient to show any intention to trade on that or to suggest a connection to that let me ask you a question returning to an issue that has to culver raised and that was the subject of some questioning do you have a copy of the notre dame opinion there or do you know it well enough that i can ask i don't know i'm a little confused about exactly what the opinion means in the passage starting at the middle of thirteen seventy six in which the court says there is the board's apply the more stringent test crying likely different fusion and intent to trade  and then said there's no need to decide that because there's no proof of likelihood of confusion which sounded to me when i read it as if they were saying no need to decide the second issue is intent but help them in showing whether or not it the name did point i mistakenly it's ok i look at it as looking at consent agreements an elected official you don't think that the board's decision should be affirmed on that alone but and if you don't think that explain why i don't it's difficult to read the board's decision because they looked at it never looked at newman's mark they kept pointing to actually used that it created a new test one when you know that they didn't cite to their numbers on the logic behind it it doesn't make sense if they had stuck to the test you know i think they would examine the evidence of an intent let i did did newman intentionally usurp your identity you randall terry and i think the intent is intent to be just the intent to use something that you did not create it so easy to apply other examples make no sense that were offered because once you know what the the services are you know activities in the program field all those a lot of those examples just do not make any sense and notre dame says look at the goods what what what you know and way the mark so his intent is simply to take something that he did not create he took the association of a business organization from one thousand nine hundred eighty six it was not a part of it and he wanted to use it because it was very valuable he says so but his intent is to point to the organization operates an arrest record right but it's not necessarily to point to randall terry and that's what you have to prove it would just be like saying if somebody tries to falsely trademark the word apple that they mean to point to steve jobs well that's not necessarily true even though there may have been some kind of contractual obligations or other things but it doesn't seem like it's pointing falsely to mr terry's name in they'd be playing on a groupie created unfounded and was the main person behind but it am operation rescue i can operate under that name and i'm new to the world in that name in the headlines in the newspapers he's continually like a drumbeat identified with every organization thank you