material and their fame amounts of material coming out of the i guess the business end of the guy right so it corresponds with the diameter so yellow is four point two millimeters and in fact if you look at the that certainly and first well if you look at the three m instructions for use which are on the record it tells the dentist use the yellow temp it doesn't say use the four dollars millimeter it's pacifically says and what i would say in response to the to the trial issue is we don't need to prove that everyone in the industry associates yellow with a particular diameter we need to show is that the the color coding system is functional under the traffic's test one front of which is whether it improves quality meaning it makes the product easier to use that is undisputed it's in mix packs affidavits that the color coding makes it easier to handle and makes a quicker because you can just grab the yellow when you know it goes with the yellow it's in their advertising where they advertise a dentist that this new color coding system will make it easier to use and i believe the district court also acknowledged it when he when he said that there is a there is a degree of functionality here i'll be a spy i and counsel i think i'm looking at the at the representations you're talking about and and looking at the declaration  mister wilson says that six colors or use a colors of the cartridge cap on matched to the mixing tip to indicate the proper size and mixing ratio but i don't think that means that the cartridge cap is the same color in other words if the mix a tip is yellow it may match to the cartridge cap because the cartridge cap is four point two millimeters but i don't i  and is it true that amazon also uses a yellow chip with a cartridge that has a yellow coating on it i understated it does just computing that in that aftermarket for its eps the other problem is mix not claims at least six colors which is almost everything on the spectrum except red if my client goes out and find six unique colors question is why you have to use yellow for that particular size four point two rather than green if you are going to manufacture both the tip and the cartridge and you can both pollock them green you can make them white black grey anything why you have to use their colors for these particular sizes because that went from one roof one reason there's there's the aftermarket but i just mentioned earlier other other than the aftermarket because i really don't think this case is about used used chips or honor it it it is an important after market if you look and the in the record and we cite the sort of the industry generally refers to these tips i collar and even and this is even admitted well we have a finding that the finding of fact by the trial judge that that isn't so yes we do well i mean what what do you suggest i do in order to find out whether the industry is referring to tips by cholera i think i have a finding why is it why is it clearly erroneous but well but what the specific finding is that some people in the industry do but not person you know uses the color as a reference that would be sufficient right what what what evidence do you did you put before him i said the proportion of the market it's the evidence cited we didn't get into and a market survey and  judge kaplan didn't get specific he just said it wouldn't surprise i assume that there are some small fraction of sentence that do in fact associate the collar with the size and refer to it that way and so there's a degree of functionality but it's not particularly great companies in the industry were using different colors if what you're suggesting is true how come there are other companies that are out there using different colors there really was not such evidence one so one of the supposedly one of the companies that was supposedly not using the colors sells a clear temp but the bag that it comes in says yellow on it's and compatible would mix packs four dollars millimeter yellow so i would just end there and by the way they're suing the company even though they held them out as  design so companies they don't want to get sued by mixed back which is very litigious and they're trying to find ways not to get sued but people are using yellow the other is the other one that does use color was a universal chip i called seed that that means it's it's for all sizes which is nice but what if a dentist wants to take a tip the dentist is not picking the bag the dentist is picking the tip and those music to my years to hear judges interested in gentle mixing just because to do next i expect to impress my dentist i think just a few minutes about the products would be helpful and i appreciate your questions the color system that mixed packed developed twenty years ago is essentially a color palette that they make available to their customers so they make these colored mixing  they make these caps that go on the cartridges but they sell them empty because mix packed is a plastics manufacturer centrally highly engineered high quality only from switzerland but they don't fill these cartridges with the magic dental materials that's used by three m and the others and so those customers buy from mix pack with the preferences that they ask for so they'll say hey give me i want to make my products interesting and distinctive and i love your quality and your color brands i will buy these colors and i will put my magic material in them and then i will ben sell them to my customers now one of the benefits of the system they could choose to match that for example the yellow mixing tip which goes on the cartridge which may have a yellow but it may not and that's their choice and in fact the one of the parties this mentioned in the case the c e o global they sell a mixing tip that doesn't match the cartridge on the cab so that's their choice but but the key thing is that the colors are a brand that they are offered to the material manufacturers who have complete discretion to package and display and distribute however way they want to make a man ask you this and you are the is it but i can't get straight whether whether the a college chick has the same color as something on the cartridge it may or may not that is the choice of the material manufacturer how they put together their product and sell and in the way this typically happens there is the initial sale market with the cartridge in the material and then there is the replacement market but there's an important distinction here so for three m for example when they sell an impression material and it has the material in the cartridge and then they include with that the mixing tips up the color that they decide they want to give to their customers with that the material manufactures that the dentist initially yes because mix pack does not sell directly to dentists they sell to the material manufacturers you not sell to the end user directly they sell to three m three m will then add their material to a cartridge they will then package in a box a kid the material with the mixing tips of the colors that they choose and they distribute and what happens on a practical level is that oftentimes if a dentist is real careful and doesn't waste the material they might have half a cartridge left after the st five mixing tips and you know we're talking about the replacement market manufacturer and said if they need five more mixing tips it's about the material it's not the color of the mixing tip that's important and it's not how they choose to go back to the street and say listen i have three m's material what are the right mixing tips that i should use for those give me ten more that's the way the market should work and does work let me ask you this is the dentist is that the diameter of it is he or she wants  what is the value of it from the diameter and therefore you know there is no direct correlation between the colors and diameter some of the mixing tips have a consistent diameter but were that dentists don't pick mixing tests because there's too many variables they would get it wrong and there would be a dangerous or poor procedure so julie surely what you're saying is contradicting f declarations is why is that not a functional count touristic which is indicative of quality because the st of all those were statements from for many years ago which do not reflect today's market well there for many years ago so that they that they don't reflect your position in litigation but that's a fact but but the point is that this was the design of the system in the event that the manufacturers wanted to use such a system and matched that cartridge to the to the mixing tip that was an option available to them but that is not an industry standard and the court found there is no industry standard about the colors or what their meaning is other than they are a brand and a very valuable brand that indicates swiss origin and high quality and he said  a matter of a little functionality he says well mister kast took some liberties with back quo right the the court said the degree of functionality is small so i think the court was acknowledging that there was evidence and the defendants tried mightily as the court mentioned to prove that the colors indicated a certain size and that that's had a meaning in the marketplace but the court found otherwise but there what about the argument that the district court applied the wrong test on that functionality that it  fabrication enterprise framework rather than our will button as set out what the test should be right and so the hook to get to that legal argument was essentially taking liberties on judge the judge's quote the judge said the degree of functionality is small but they quote and said a degree there is a degree of functionality that was found and so there is here he is there for the court considered and found functionality in the st sense but then excused it later after looking at the alternatives available on the market i think their argument might be that the judge didn't look at like for example the quality issue that quality that again stepping back a trademark should not be the best or cheapest way of producing a product so i've always said it would attend if it constitutes an improvement on the on the quality on it in this case it would  credited the testimony that the mixing two do not work any better or differently whether they have color or not because many of them do not and there was testimony from the witness understand then you're saying that the purpose of the of the colors is is to identify all your clients product but what's what's the purpose of this for the do it for the dentist to keep the dentist from getting bored i've been using the green tips all morning now i'd like to go on to the students of the blue ones it's hard to imagine dentists giggling as as they're playing these materials and having such a great happy back to the quality point i thought i didn't have the quote earlier quality again but was considered by the court and the testimony showed that  that adding the colors to the mixing tip in the manufacturing process can actually hurt quality so it's not an improvement of the quality of the product it actually can hurt the quality control m process and also testified that the colors did not improve the function of or mixing of the do they have do the colors correspond to a size of the the court found that there was no effort that the theory that that color is corresponds with the size was wrong and in fact the defen expert that was the essence of his testimony he had done a survey of the marketplace he had examined all kinds of products available and he had concluded that the color did equal size and  the only purpose of the colors is to identify your product and to it and to and to taint the dentists i should you very entertaining aspect but well i mean you know  but but it in but they were fanciful arbitrary colors when selected there was no reason why you know one was brown one was one was blue they were they were the colors were selected to be attractive and eye catch and that is and the court found that that after listening to testimony about the origin and reasons for selecting mixing tips that that was that the products were not functional or their colors to twenty one of the joint appendix was that it has never manufactured a yellow mix into it anything other than a four point two millimeter diameter this is a company that has been making this product for more than twenty years and has a one hundred percent market share and they never made yellow in any other size that's not a coincidence that's because color corresponds to diameter which is that what just looked at the difference in diameter do in terms of  diameter and for the heavier stuff you want to bigger diameter and that's what and that's why for example when you look at the three you know instructions they package with their products they say for light body material use the yellow tip and they  is there some dentist somewhere who doesn't probably but i mean that's not what we have to prove that every single person the industry does that we just need to prove that these are colorado said your doctor the expert  produced so new tips that he had never seen before that apparently were were clear and he said well if these are i've never seen this before the market i've never heard of these but if these are really out there must mean that not every temp is yellow which may or may not be true we don't know about these tips we don't know if they never saw anybody every four point two one right but right but the more phenomenal it just doesn't matter even if there were even if there were two different color codes you know there's the mix that color coded in some other company had their own wholly different color code neither party would be allowed to monopolise that particular color code the color coding makes it easier to use the temps that's the testimony i'm this is a very new developments that we're supposed to notch credits m essentially saying that she chose which expert he believed and rejected that sure but but doctor glaser doesn't say that the color coding does not he doesn't say they're not color coded and he doesn't say that color coding doesn't improve quality under the traffic's test these testimonies doesn't speak to that issue so so to try to him he says to find that dentist consider color is not the only thing we care about which is fine i'm sure that's true i'm sure that's true of every single product but it doesn't resolve the functionality issue i see i'm a bit past my time if i could just leave you with one final thought any time when you're trying to decide this case and you are tempted to say this color coding system  functional because of x just asked whether x would also be true of the traffic design in traffic and if it is that can't be the right mode of analysis for determining functionality you mean red yellow and  you can't make traffic lights were red means stop yellow being sought out in green rooms because there are you know anyone could just do the road system there is valued say uniformity here so i think your honest point about the traffic light is a good one