under state law cancel a denial of cancellation of the registration trademark registration and an appeal the scope of the permit injunction entered by the trial court see if you're racing is also the appellee in two appeals first the defendant's appeal of a denial of defendant's motion for a judgment as a matter of law and a motion for a new trial and the third appeal concerns of contempt order because of the way the case is laid out it would letters or five minutes argument now and we're not going to have these multiple rebuttals and so i will just reserve five minutes ok but this is appeals from the trial judges the results from the trial judges failure to fully recognize the jury verdict this trademark infringement case was tried to a jury over three days after that the jury sitting as finders of fact made a number of critical findings first the jury found the defendant's marks which were b m s wheels various logos with v m s wheels and various permutations of the letters be a math were likely to cause confusion with the plaintiff's plane b m f registered mark it's the first jury finding that is the jury was comparing the defendant's marks against plaintiff's word mark in just the word or the letters be a meth it's a non stylized version of b second the jury found that the defendants logos the defendants logo specifically were likely to cause confusion with valid unregistered marks owned by the plaintiff so for this finding the jury was comparing defendants determine that there wasn't proof of monetary damage and did not award any monetary damages see if you receive from our perspective the case was never really about monetary damages this appeal for followed well the court issued a judgment in c f s favor following the jury verdict and felt fully account for the jury's findings of a likelihood of confusion in three critical ways first the court refused to word c f e its attorney's fees under the michigan consumer protection act the parties agreed that a finding of likelihood of confusion would result in liability under the consumer protection act that finding of likelihood of confusion mandates an award of attorney's fees the amount is to be determined by the trial court whether it's reasonable or not but attorneys fees are required under the act second the court entered only a limited injunction but permitted defendants to continue but arguably is not as offensive as using b m s with the term wheels is really a generic term it doesn't affect the mark and you have to look at the similarity between the two marks the jury f wheels to be confusing the jury didn't say we find the jury the defendant's use of d m f alone to be confusing we found the m f wheels to be confusing and it's really the pla f that must be required to be found to be found to be confusing that's necessarily inferred from the jury's finding to need to continue to talk about the scope  the court in some circumstances for and we reviewed the scope of the injunction for abuse of discretion that that's that's correct but what we have to look at the scope of the injunction in the context of the factual determination by the by the jury and those factual terminations are binding on judge loss of the trial court judge you he just didn't give the fact that factual finding question question three is what really animated the injunction in question three of the verdict for compared to logos but we don't need to glorify the logos the logos were included almost in the in the nature of a lesser included offense and judge lawson says well been convicted of everything i'm only sentencing you on the lesser included offense we just skipping the effects of question one laura find the logos to question one that's the teaching really of the band the case it's a involved b where and it's the same reasoning it's that it was the defendant's use of marks you look at the common element between the two confusing marks defendants use of the logo or the plain mark b m s wheels as judge moore asked about infringes see a few words marks for the very same reason and judge lawson recognize the confusing nature of the but fail to recognize the confusing nature of the plain p m s they infringe in the same manner the commonality of the term be a math and for the same reason it's really the misappropriation of the be a m letters that is the common element between those marks every other feature of the defendants logos are actually items that distinguish that logo from  plane were more if you think maybe of of two cars that come off the line you have two ford taurus as they come off the line before paint supplied you've got plain pieces of metal for taurus and one you apply paint to you turn it into a convertible you have special tires and wheels too and then you put them in front of of the judge and the judge says well i find the thing to be confusing about that to be the fact that one's a red convertible with special tires that's not the there can't that can't be the elements that are confusing about the fancied up car thing that it must be confusing is that they're both for tauruses or that they're both a similar type of car you can't look at a distinction and say i'm addressing the confusion by preventing them from using use utilizing features that are distinctive about their marks you have to in order to get force the finding of the way confusion products no i think it each case is going to prove if there is if there is a different defendants i think is the suggestion in each case would require a unique examination of the different first factors but  here the jury did that and found this defendant is not allowed to use it for its products i think it automotive parts i think you'd have to consider the relatedness of goods the whether the automotive parts are trying to reach the same type of customers all the factors that the jury went through and the judge instructed them to go through when they made the factual finding of likelihood of confusion but that that factual finding was binding on the court  the parties spent some time briefing that the safe distance rule on this court has decided that the safe distance rule does apply but i would submit that under the question one you don't the safe distance rules basically once been found guilty of being an infringer as the jury found here you need to back off a little more than any other competitor someone else in the realm would do but i would submit that this is not even a case for the safe distance rule because the jury's finding finding that the word mark is confusing doesn't require application of the safe distance rule judge lawson actually allowed them to expand the margin beyond what the jury found while the defendants to expand  the really critical issues the attorneys fees this is a matter of state law that's reviewed did know both judge lawson's interpretation of the state law was that attorney's fees in order to award attorneys fees there has to be a requirement a finding of actual damages that's just not what michigan state law is that's a state law that's clear that's erroneous here and the decision should be overturned on that ground there  sufficient evidence of an actual loss and the actual loss flows from a finding of likelihood of confusion that's settled trademark law to your distinguishing between actual damages and actual loss actual damages and suffers a loss is specially the trademark case a lot of the loss that is addressed is non monetary type of of loss loss of goodwill loss of particularly the audi case piece that speaks to loss of control of reputation and recognise the act applies but the plain text of the act says your title to actual damages or two hundred fifty so one of those two things together with attorneys reasonable attorneys fees and the judge's discretion is in determining what is  appellant we have all the titles to yes right here an interesting case the nice thing about trademark cases everybody gets a gut feel for him when you first hear about him there's there's a lot of wallop there but you get a gut feel right away i'm going to start with autos on the autozone six circuit case the big basically broke down the scenario of related goods in this case is all about relatedness of the goods it goes to every aspect of the case including the injunction and everything else autozone talks about cases in which there are direct competitors which means confusion is likely cases in which they're somewhat related but not competitive confusion depends on other factors and cases in which the services or good totally unrelated in which case confusion is on the likely i submit the third scenario applies here there was an interesting quote by the sixth circuit in the homeowners case where they cited the district court judge and said what idiot who wants to buy an automobile part would go to the radio shack why submit what idiot who is going to buy wheels would buy a cylinder head or what it wants to buy a cylinder head would buy wheels these things are so on related and i'm not really sure we think we know where this case went off the track and it went off the track on relatedness of the goods and we think it went off the track on the evidence three errors made by the court and the clear misstatements by counsel for plaintiff which are not disputed as being false on this record that's really important this isn't a matter of interpretation or stretching or arguing inferences he made to flat out false statements to the jury related to the key the admission of the evidence which should not have been in the record because we said it was prejudicial and at least my understanding is after thirty four years of practice if you don't jump up in the middle of someone's closing argument i dealt with that in my necessary i don't have an entry or here today we're out i want to belabor it you know i'm object and i did not object to it it was an argument you are correct your honor but that doesn't mean i don't know if i don't object to him lying it's ok i don't know if that really follows and we're here i'm not undisputed fact he told the jury that the only time the trademark office considered are their mark they rejected ours and that was a flat out lie and whether i object or not doesn't change the fact that it's a flat out lie to the jury and the only reason they were able to do it was because they kept out the evidence that should have come in on tires and they misled the court to enter evidence that shouldn't have been in which is b m up off road if you look at what look at that office action if you can for b m f off road it's four pages of legal argument and case law citations from the trademark office which invades the provenance of the judge to instruct the jury on the law and that is was a critical factor in this case because if we look at the fish's factors in this case it's not even a close call strength of the f for cylinder heads they have a registered trademark virtually no sales no way advertising no surveys nothing they have that the markets are basically sits out there it's a naked market with no strength we look at the next and get around the fact that they they were they found their application for their mob before your client did for years and the mock is still b m l and then i'm betting this going think they came from the monster or from the same source even if it's usual different merchandise well you're i doubt i would disagree with that and that's why i go through the various factors which leads me to they had one supposedly anecdotal version of actual confusion they put in this hearsay statement which i objected to and i got a declaration from the from the guy who said hey i don't even own b m f we also i'm not confused just wouldn't  these broad statements about whether there's confusion then i'm sure it may be their burden but if you don't have anything this shows the speech to confusion one way or the other your argument is not as strong as it would be if you did have such evidence i don't know that you're asking me to prove a negative i'm asking you to prove it and i know i didn't we said there was no likelihood of confusion there would be no protest just a ball statement you got  specific it is absolutely arbitrary when it comes to whether the market's protectable but that's not the same a strength of the mark strength of the mark is what association the market has in with in the minds of the consuming public they no survey that anyone recognize their mark as being associated with them in the minds of the consuming public there was nothing and virtually no i think five customers ten customers or what it was evidence that your client a do so and that it's taken into account that it was in your burden but what but factually what evidence that you made on that issue we put evidence the people associated with armor we put our advertising in our sales and that's generally how you show it we ha we been much more successful i mean it if you look at the two companies they've got they sold like five or six cylinder heads a year spears a cylinder heads we sell thousands of wheels or we show that our market strives how much you're promoting them on why does saying that there was and they didn't show anything to show the market was associated with them in the minds of the consuming public i mean we weren't selling them we weren't asking them to stop using it for cylinder heads it was still cross claim against them we didn't have to do that we we don't think there's a problem yeah but i mean the issue are primarily used for high performance automobiles we make wheels for trucks and we don't believe they're related and that was really what the case you know of mcdonald's hamburgers found out you were using their golden  what they do they are not mcdonald's mcdonald's sells billions  them in time and something there's another big issue here well we think it's a big issue your honor or your opponent is arguing that the injunction should be broad because the limitation by the district judge of the injunction to just not using be a math doesn't comport with the jury finding how do you respond to that i disagree with that i think if you take what they say at face value the court has no discretion on injunctions every time someone wins the court has no disk discretion the supreme court made pretty clear in e bay that a plaintiff has to show irreparable harm to get a permanent injunction there will be no more presumptions you don't just get a presumption of harm because you when they came forward with a nothing they could have they didn't file a single declaration or exhibit they relied almost exclusively on the presumption of harm the only thing that the judge looked at was this one instance of confusion which we think wasn't even confusion to begin with and we had a declaration that they the judge wouldn't let in which said i'm even confused but even if you given that one that's not irreparable harm they didn't come forward with the not and this is why the judge got it right the goods are related unless you want to say anything in the two hundred seventy billion after market auto parts are related no one's going to confuse the two what he did was he did oh by the way the center stand we don't we think th the injunction is fine if you believe that the underlying decision is correct and we think it it properly balances everyone's needs he said look i'm not going to destroy your company by making you change your name after you've built up this goodwill and now it's it's i don't know it's eight years or something and i'm not going to do that to you you can keep using it you can't go into other automotive parts that's what he did and he properly balanced the equities and he properly applied all the factors of e bay and i believe he came to the right conclusion if you assume the underlying decision is correct and i think that if you go the other way if you say that we we can't use be a map then the judge has no discretion at all there's no there's no dispute that what is the do you have in a case law anything on what happens when the there's a mistake by the people that the trademark office and accepting a mark when there is a prior mark already there  which is that's basically what happened here was no there was no mistake your honor that's the point this is how it all got off track well put the plaintiffs got there with their mob before your client got there with their my client filed for wheels and had had registered be b m f even associated with another product a day should have been some checking should be he did the but he didn't find that example we don't know that the examiner said i ran a search and i protective order that's what happens but you don't attempt to the postman oh no because they it's a fight big usually because you're undercutting the whole administrative system that want to question examiners pattern or trademark examiners and what they did you're undercutting whether the rights that are granted are valid and that's why they don't go there we presume that he said i ran a search i didn't find anything the conflicted and the law presumes that he reviewed everything that was necessary to issue that th why that b m x tires is so important even after all of this they give us a registration for be tires all for their registration for cylinder have all know why you don't go to the trouble even if it would have been difficult of time to the post the no cancellation petition pending with respect to be a member tires that was erroneous we allowed over there mark is what i'm saying and your honor just let me just touch on the attorney fees i didn't have this so you can take a few more minutes ok think you have a question on your tourney fees issue everybody raises the michigan consumer protection act as an add on to all these cases and the six circuit you guys have ruled many times that look if you find likelihood of confusion it's it's a violation of the michigan consumer protection act tourney fees are never mandatory and i don't care that's what they're arguing but you always get attorney fees aren't they arguing that the district judge mistakenly thought you had to have but i don't want any case that says a judge has toward attorney fees under the m c p a it's always discretionary with the court number two though we had a stipulation on the record here we were in chambers working out the jury instructions on this and we had all kinds of verdict forms and jury instructions on the mission for some protection and in order to streamlined it we agreed that if they want to on this it would violate the mc ph and the judge would have the discretion to decide attorney fees and it's right in the record we've cited to it and that's exactly what happened he exercised his discretion and he didn't and award attorney fees and also this is an attorney fees case the jury found that our klein adapted to mark got a trademark get it in good fa there was no willfulness this just as an attorney fees case and for them to say they weren't asking for damages in this case just isn't true they were asking for discord one of our profits on the case and feel like over a million dollars which we got thrown out and they were asking the jury for three or four hundred they brought in fact the evidence in through other means and the judgment for a matter of law i think the judge did the panel can dispose of this appeal without even reaching the  merits he never raised it as in most as a motion for under rule fifty eight before the jury was sent out they're not allowed to raise it under rule fifty b after the jury comes back it's a renewed motion they never brought the motion in the first place they're not allowed to now bring it on the likelihood of confusion issue after the case decide but even even looking at the substance of it they're only really allowed to overturn the case or the movement is titled to jim all unless there is a complete absence of proof on the issue and what you heard from mr can or should be very clear is there is a lot of evidence in this case on both sides on every i don't most every single frisch factor all of that both sides evidence to put together a mountain mr can or wants to walk up and remove a couple of rocks from the mountain and put another couple rocks on and move it around and say well it's no longer a mountain still a mountain if you've taken a few specks off it whether or not the evidence that was excluded is excluded from consideration or evidence that was admitted is considered we still have a mountain of that but the jury could have drawn a conclusion of likelihood of confusion or possibly could have drawn the think the jury can look to their own conclusions and realize the b n f is an arbitrary selection of letters or an arbitrary descriptor applied to in this case recent heads but the spectrum of products that my client sells so i think it's a very strong and at least there is substantial evidence of strength from which a jury could infer strength and you can go through each of the different factors and find evidence on our side for those but even when when you don't mr cantor talked about the actual confusion when there is no evidence of actual confusion that is not a factor that falls in defendant's favor that then becomes a neutral factor in trademark cases there's  reality that it's very difficult to find actual confusion someone who is confused one often doesn't realize they're confused maybe not till much later maybe how would people be confused about a cylinder head versus wheels it's not a question of they're confused about what products they're buying they're confused about who's associated with the product so so does the m f then cannot be associated in your view with any automotive product with automotive products that would that was put forth a trial and i think the judge lawson in forcing his injunction would have some i have some discretion so maybe if they if they did automotive air freshener i think judge lawson said well that's i guess an automotive aftermarket part but i think that's sufficiently different that it wouldn't fall within the scope of the junction but here we're talking about parts bought by auto and aftermarket parts so i think it's the goods are actually very related and there was evidence on both sides on that specific issue or the wheels just for trucks and the cylinders not for trucks or that that's not true and there was evidence submitted there was two things there was a catalog the defense publish an annual catalog that showcases their goods it's available throughout the year on their website it's it's transmitted that  report on their wheels showing how they were used to use a trick out so to speak of a street racing car and our product was to be used on any park product and on any type of really engine i think that there is testimony that it could be the case will be submitted