had bags specified the components controlled its manufacture at a captive factory in china and chose not to monitor that sac to a fourth counterfeits even though it knew that counterfeits were rights in china and that this very factory had didn't want to change anything in tended to leave it as it was wrote your honor to be fair i think that what congress was indicating in the one thousand nine hundred ninety meant was that it had always understood there not to be a requirement of willfulness in this context and application they didn't change the language they just repeated it when they enact the new language with with respect to dilution they did repeat it but first they removed it that is they didn't just leave it in place they took brief regarding the ninety six amendment on he said demonstrates that the show you well for most isn't required did you make that argument before the district court and if so where is an  is consistent with everything else in the statute it's consistent with the eleven seventeen being the trouble prophetess consistent with the eleven seventeen c and the ten times higher statutory damages and it's consistent with the targeted exemptions for innocent infringers in very particular contexts but not earlier the legislative history is replete with explanations about it the title of the acts against a senator representative cummings remarks express exactly what congress was doing and so these concepts of statutory construction that for instance the third circuit applied x offer to sort of predict what the second circuit would do twelve district courts including our court the court below have addressed this issue and they've squared up and analyzed the legislative history they've taken the heavy lifting that some of the other circuits the third fourth and fifth haven't done and gone behind the legislation to figure out what exactly the one united members were all about and ten of the twelve district court sort of address this have sided that with the conclusion have come to the conclusion that the george best standard continues to apply and that wilfulness continues to be a threshold requirement i'd like you to address because i find it disturbing and i'd tend to ask your opposing counsel about it the history of romex history of training temporary restraining orders and the similarity shocking similarity jaimie in the language of the various applications in which same district judge this plaintiff came before the court and said i need a temporary restraining order because i'm shocked and surprised to find counterfeit versions of my magnetic snap fasteners in products on the shelves and twenty two days complaint was filed in november twenty second the tiara motion was brought on the number twenty third black friday was that friday and the similar principle was held the same the same approach the same attempt to extract a lucrative as the court below found the inescapable conclusion was that they strategically time the suit to increase their leverage and to extract a profitable settlement and in two thousand and eight similar lead up had happened where once again in november turned out at trial that the friends they were friends of the planters principle were friends of the person who would supply the snaps there was a settlement reached but when the lawsuit was filed in that case so in two thousand and seven two thousand and eight and in two thousand and we're certainly not disputing that the jury found us to be liable we never purchased any snaps the manufacturer they describe as a captive manufacturers are from it the record shows that it was a third party manufacturer pursuant to an agreement we have done business with for twenty years independently owned unlike the month santa case for instance where the the factory at issue was was truly a captive factory this was a third party manufacturer who made independent purchasing decisions the type of sap or brand of snafus never specified and so fossil never purchased any of these  part and that will clean it up that's absolutely the case your honor if this was a fresh statute that had been inactive with no prior history no common law history no legislative history but fresh written as it was as it appears now that's absolutely the case however that's not the case this is a statute that has a long rich history both interpretating interpretations from the supreme court and many interpretations from the second circuit and i see that i've gone to my  business with which your client did the filing of word for word or similar affidavits if almost precisely similar times in had had in fact not been truthful on the stand with regard to that and as a result she said that she would reduce the word by eighteen percent which was the amount of time from when he learned that these were in fact counterfeit snaps until the time that he sued because it was her view that he at times sued to come before black friday so she would not allow a recovery of profits or damages for that period that's not on appeal before this court if in part obviously because of the standard of review of such things so so  analysis that seven of the circuit courts now use which is the traditional equitable balancing that the supreme court recently affirmed of octane fitness is the correct approach to use when looking at how ver know that's not true but what i'm asking you to do is to say that the second circuit on the language of the statute as it currently exists and under the supreme court's directive in octane fitness that discretion be given to the courts and not restrained through overly rigid frame panel can interpret and decide what was in that or interpret it or decide by out of court in the past by previous panel of our court they did so and in one of those cases was there a statutory change in one case it was just different arguments problems well your honor it was done it's certainly a conditional cross appeal we did not understand it we didn't certainly intend it to be considered improper across appeal it was done as a protective measure in the event and the unlikely hopefully unlikely