with all reasonable inferences taken with those facts as rules will be six requires the court found that what took those inferences in favor of the defendants and not the plaintiffs took took those acquiescence and that's open from offense may not be an appropriate one on a to be considered on a route will be six motion to begin with but even if it is even if it is appropriate to be considered the only gay sions of the complaint it did not establish it should be something that is still with you in terms of development of the factual circumstances surrounding these matter and also the considerations of you know balancing act these interests of the parties and the public to with the new company or at least that seems to me an equally plausible interpretation the facts escalated in the complaint which certainly doesn't foreclose the trademark infringement claim once he was fired of agreed and we made your senior trademark use or which your clients would be has the option or the entitlement to show an affable confusion which would recover the claim as against that you in your user assignment of ownership that's not anywhere near pleadings that could also be a subject of discovery i suppose if that would be alleged but it hasn't been nothing's been alleged soap on the face of the co public interest of waiting marketplace confusion so strong is only in america it represents a case law represents it also could allow for the revival of the i'm lame for an injunction a total injunction based on inevitable confusion yes of that if that's possible i mean again it would depend on where the case would go once we were to get back to the district court  know for the reasons that are so forth in the brief in these and in this argument that complaint by a plain of with factual statements these are not allegations made in a general way by an attorney and what he pled is that he actively transferred inventory to my clients and i apologize i jumped in to soon kevin mcquillan on behalf of the defendant sample lee's ice and to a limited so there was nothing it's an active on his part he actively seeks in games employment with a company called hyson to your limit he knows what the name of the company is and based on his pleadings that company is formed and then after that we have hurricane sandy and he transfers goods from another place in new york to my client he goes to work for him as a sales person why is that course of conduct not equally plausibly an implied license for the duration of the employment as opposed to an active representation that acquiescing in your perpetual use of my trademark because he played himself out of that also how was his pleading sir clear he played that at no time did my client have any right to do this he didn't make any allegations of an implied license his pleadings are at no time did they have the right to use the names at no time do they have the right to sell the goods they've been infringing from day one that doesn't lead by that allegation the plaintiff hasn't played itself out of court it's just a different theory of the case that you don't have to plead theories of the case no but you have to plead facts that will stand up and right to the don't the only facts that you that you can rely on here to support dismissal an affirmative defense of acquiescence are the inventory transfer the transfer branded inventory and the reverse employment situation whereas danske used to be the boss now he's the employee and he's profiting by doing that he's profiting by selling these products for another company now he's coming in and saying they never had any right to do that right and that establishes perhaps contextually acquiescence but not necessarily there are other interpretations of that course of conduct consistent with alternative trademark law explanations that would not result in the defeat of this claim but that has meant that it's also an affirmative acquiescence is an affirmative defense it requires proofs it requires interpretations of proofs and evidence and facts there is unless there is only one plausible interpretation which is hard for me to see and that's pleading and then there's a doctrine under which the claim can be revived if there is an ethical confusion even if acquiescence can be proven as an affirmative defense the claim can still be revived revival should be considered by this court it was never raised in the court below it wasn't they had judge shader gave an opportunity he read all the briefs on the motion to dismiss me said i'm looking at i want you to simultaneously submit to me additional briefs on that issue everybody knew what was coming they never raised revival at all in the district court that's been waived that's gone that should not even be considered by this court the first time they made the revival argument was in their reply brief before this court that was not before the court there was no opportunity to deal with that and it should not be dealt with by this court here we come back to looking at their plea to use and the the issue in this is that they've now conceded that they can play themselves out of court on a twelve b six but what they're trying to say  wait we want you to imply a license they've never once brought a rule fifteen motion before the district court saying we would like to amend our complaint and change our allegations from the defendants never had the right to do this to they only had the right to do it while we work there and then when i left they no longer had the right they have a verified complaint they decided to stick with those sworn facts and that's what they're stuck with here ah they also talk about inevitable confusion they say we played that no they played a likelihood of confusion and the case law is clear under the coach house restaurant case they cited themselves that the standard of facts consistent with an entitlement to at least under the trademark lies down that acquiescence is an affirmative defense it's subject to limitations as to the scope of the remedy and potential revival of the claim and weigh in on the pleadings because it's an affirmative defense it's highly contextual it requires specific proofs including proof of active representation and it seems to me that the facts that are alleged in this case are susceptible of plausible alternative interpretations and if that's the case you lose the motion and have representations plated and that's what the doctrine requires and there may be some support for contextual acquiescence but that's a little thin at least as  matter and to win that argument on the pleadings is a very aggressive litigating stance you might win it on summary judgment depending upon what all the facts show and what we might find out in discovery we you might find out a discovery about what was said among the parties and then litigate it summary judgment but to to do it at the pleading stage it seems to me is pushing the doctrine further than it can go at least in this circuit but we have a verified complaint so now he's going to go back on his verify from plane and testify to something else in discovery and say oh no i didn't mean to swear that they never have the right to do this nominee and swear that they had a right to do a wise employed there he set himself up perfectly for this whether they had the whether your clients have the right to do this is a legal conclusion you don't swear to legal conclusions you know the effect of the verification the complaint is an issue you can litigate below at summary judgment and you know whether he should be found to factual assertions in the complaint as opposed to legal conclusions that's a different matter again the other point i was i was going to make on this or now asking the court to assume quote any concern i can't ski for such use would have been conditioned upon his employment unquote they realize they haven't played this properly they're asking you to make an assumption that there was an implied license why didn't they plead it they played just the opposite i think the judge shader in looking those asking for the breeze with additional information on acquiescence everybody had their shot at it now they're coming before this court and they want something different they say let's pretend we had allegations of implied license let's pretend we had consent let's can let's say that we somehow had alleged the grounds to revival and i understand where your honor is saying but this is the perfect case for dismissal and the pleaded us to go back and say why should my client have to go back now on a verified complaint and litigate these issues that have been sworn to there's nothing and there was nothing before the district court no argument about revive it had to somehow say well the issue of acquiescence was there the only arguments made before that core were that all it's wrong for two people to have it there's a likelihood of confusion they had every opportunity to come back and say we want leave to a man and we believe in this situation confusions and any other wall and they might have been able to deal with that at that point they chose to stand on their complaint that's what's before your honor's to be consider are the allegations in that complaint not a number not a like all well assume we did this or assume we did that it is this is a different situation this is not an interloper someone that came in and said all we're going to start doing this this man knew everything he went into it he actively did it and that is sufficient under the under the case law and our supreme court says that you plead the stuff on the face of the pleadings you're out they had an opportunity to ask for leave to amend they did not do that but now yet they want to come before your honor's here and say well we're really asking you for leave to a man by sending it back so we can try and clean this up i don't believe that's appropriate at this level it terms of what type of relief they're seeking i don't believe that's relevant at all at this well the issue is what did they vary this man and the president this company verify in the complaint and i would take a look at that if that's what we're here are not to do things that have come up in a reply brief before the  cybersquatting somehow they're trying to say oh this is different this man went to work for a company called hyson to you limit it as a sales person he used the very websites and everything and he is now trying to say he's not now trying to say if you look at his pleading he's saying at no time did the defendants ever have the right to sell these goods with these playbills to use this name to use this website that is not an implied license he has played himself out of that by trying to say that this never could have happened yes yet he's pled that he sold these goods that he made money doing it he got commissions he got salary from he got fired all right he's got of whether or not he has a viable business is not an issue in this case judge shader was correct in following on this that in this situation sexy so this is just a small niche and in fact my client is phasing out that name and you can using a different name so that's that you know my client's business does not depend on these products for whatever reason this is something this person is now trying to reach back it it in essence say hey i'm not a bot not only want to be paid because he's claiming he didn't get all his payment his commissions in the other columns not only does he want to be paid for that but i want damages because they misused what i was selling that's not consistent with what the  any other questions apparently not think to just shoot or did want us to have some supplemental briefs about the employment context i don't think either party did very well with those because he i wasn't happy with them but you know it i think it makes the question  acquiescence or other from a defense maybe we could have if there was a limitations issue or official immunity of some other type of straightforward you know factual from advance this is a bit differen