improper the district court made multiple legal error as well during all reasonable inferences in the light of the moving party amazon has summary judgment was improper because first there was limited fact finding and the fact finding there was one hundred percent in amazon's favor you can see amazon's broner and shield declarations that was submitted there was a major dispute what fact finding made a difference in the but i understand you weren't the author of the brief but the priest spends most of its time complaining that the district court accepted amazon's description as to how human beings weren't involved in this keyword purchasing process and the district court wound up saying indeed they seemed to adopt york position with regard to that's not a defense so how did any of that so called fact finding matter i'm not sure how well even though they said it wasn't a fan and there is like documents fifteen in the case amazon admitted to be able to stop keywords that was submitted to the new jersey district court well but but it doesn't matter i mean that you can complain about the district court allegedly finding facts but if that wasn't the basis for the court's decision and it appears to me that wasn't the basis for the court decision it doesn't matter if it's air it's harmless what matter did the district court find any facts that actually lead to its conclusion i think they're off facts would change that this is you know if they looked at it properly and i will get to that communications decency act gives immunity to amazon and pre amps any state law claims amazon was a market active in the market was an act of market participants and is not covered under the cd in any reasonable reading they are much more than a case before the panel the district court graciously mis road the affirmation case for amazon legally in negative thing allowed fraudulent companies to sell my brand with their online retail store and i was never allowed the factually illegally to present the argument amazon provided no discovery despite reason numerous requests i mean just as a background i sold branded synthetic turf since two thousand and three i had a website and grass dot com i listed twenty to thirty ads on amazon through the a s i and which is amazon seller identification number the turf ice cell was specific because i remember when i did it it was the kind of material  it was fire aided it was made in the usa and these were specific qualities of the product i was trying to launch their one hundred if not thousands of different kind of synthetic tariffs and again part of the problem here is when you a watches it goes back hundreds of years we all know what a brand name watches but artificial turf is a little different nobody really has the concept that there could be hundreds of types of artificial serve all different so they are sellers provide amazon the contents for the listing amazon assembles advertisements for their listings across major surf and google's case it's called edwards amazon contracts with all these search engines they buy keywords from them and they're on the contract with the search engines to make sure there are no fraudulent ads it's amazon's job when you say fraudulent ads what do you mean what part of amazon's case is that they keep selling it's all this these other third party sellers that a causing a problem but when amazon buys a new ad with google as in my initial document one we got a letter from google saying it's amazon's responsibility to make sure they're giving true full not fraudulent ad words that doesn't bother anybody and amazon says it's all the third parties but there are a contract with google they're on contract and it's part of that contract says you know give us it's up to you to monitor t and i'm a little confused as your last of the brief is replete with references to counterfeit products and then we have this concept of competing products which is a it's counterfeit meaning someone else's put their name on and the making artificial grass calling it in grass when it's not when i set up the ads there specific characteristics of the grass whether they're forty six ounce or whether they're made in the usa specific characteristics i did over ten to fifteen test purchases every piece of grass i got was different so it was not i only sold one specific type on amazon everyone was the same people just put on any kind they can find well it is but you see it made purchases purchases of what products can fit within that product code to be unique to the kind of toothpaste to be unique to everything it's a specific for just that product only it had its own barcode it was just for that product everyone is listed on there its own products not to be confused with like e bay where every ad is different you know it's a mess of amazon it's only that products the specific characteristics of that product well if they classify products and your complaint is that other people's products wound up in your classification what you've defined as your classification is that it was a product yes what and how were those other products law you've brought a complaint about trademark violation a s i and amazon's internal code is not a trademark that you own you may you may have a cause of action there but i've got to say i haven't seen it in the lawsuit that's been filed or discussed here the seems to me like an entirely new theory well this has to do besides that edwards also from od'ing my products paying for once i stop selling on amazon a product never existed on their belt the chronology as i've tried to figure it out you your declaration talked about pulling your product in march officially terminated the relationship in website as of sunday so they never stop it ing on it so so again i'm trying to pin down your complaint your declaration says your complaint is not the sale of competing products your complaint was that defendant misappropriated the ingress trademark in domain name by getting these keywords so is it the problem that at points in time including after you stop selling on amazon if you had put in grass in to the search engine because amazon purchased the their odds would pop up on the google or whatever search engine page is that is  the problem yes what's unlawful about that from there you click on it it's going to amazon sells ingress products which at that point they never did well what do you mean by in grass products you mean amazon sells turfed products you're saying they didn't sell your turf products at that point in time yes but what makes that unlawful well they're competing against me and the whole web market and why would you ever it's any name on your website if you don't carry the product because you know somebody is interested in the product i mean multi time machine you're familiar with the case i made reference to watches right amazon is ok for amazon to attract customers looking for whatever the name of the watch was then m t m special ops watch even though that amazon wasn't selling that that's ok it's ok for jeans there was a time x again synthetic turf is just way different nobody has their own that there's hundreds of different types so but is lot to the point of multi time machine is that the core element of trade infringement is whether the defendant's conduct is likely to confuse customers about the source of the products if the products that you wind up looking at on the amazon website are identif coming from different sellers whereas the trademark violation they were clearly labeled that way it would just savvy assume a know it but the average consumer would be totally confused would you like to save the rest of your time so you can come back up on rebuttal others so generous of you thank you your honor good morning your honors an awesome power on behalf of amazon as is your honor to have heard this case turns on whether amazon's use of a term is a keyword that was then used in search advertising by third party search engines and which you then lead a user to a results page on the amazon website whether that use of a keyword by itself constitutes either trademark infringement or false advertising and on the facts of this case it is not and we ask that this court affirm the district court finding on summary judgment for these reasons the first is that mr last off when he began selling on the amazon website as a seller in two thousand and eight he entered into a contract it's called the business of services agreement and under paragraph four of that contract he gave amazon the license to use his mark so that was authorization to allow amazon to use the ingress mark there's an indication that after that license expired or authorization expired that amazon continued using the mark in advertising so so there are also a break that into two points your honor so there is an allegation that amazon continued to use that word and purchase that key word for purposes of third party search engines but the record is clear and this is in the browner declaration and it is at purchasing as of that date but it could very well be that there were still search results that return for the product and i think what the confusion comes from here is the fact that once a  what is called a product detail page once a product is created for sale on the amazon site amazon retains that detail page so even though mr last off decided that he was no longer going to do business with amazon amazon still as a service provider and under that contract retain the right to maintain that listing page and other third party sellers still have the right if they're offering the identical product as your honor noted to list against that same product page but they they wouldn't have the right to list against you on the same page and describe their product as in  grass your honor mr they might if it is an identical product and the reason your honor and i would cite your honor to the the supplemental excerpts of record at at seventy one where mr last off admitted in his deposition that first his one his mark is unregistered two he has a non exclusive relationship with his manufacturer of turf and what he does is he cuts the turf into different shapes and sizes and then calls it in grass and sells it and he admitted that yes it it could very well be the case that a different seller who uses that same large manufacturer in georgia could cut the turf to the same size and shape and could sell the same product all of that it's still short of the question of whether that different seller could use the name in grass perhaps not your honor that's that's not what i mean that's the potential trademark violation i understand the plaintiff has a theory a broader theory but there is a potential trademark violation if and several steps down the road there would be a violation if somebody else used the in grass name there may have been a question of who is liable for that violation but wouldn't there be a violation if somebody else used the in grass name and it's posting on the amazon web site that there is the potential for that your honor and in the instances and this is also in the record i would direct you to have supplemental excerpts of record it one two three one twenty three there is reference to mr last off submitting some complaints to amazon where he said there are third parties he never said amazon sold this product there's no dispute as to that but he said there are some other third parties who are selling against my listing and they aren't valid listings and so because amazon doesn't know his product versus someone else's requires a third party to go through a process to basically prove that up so that they know whether they need to take action or not and that record evidence shows that he made allegations with respect to a series of different listing and amazon took action with respect to suffer all of this so that's an admission that's in the record there is a process in the event that there was infringement by another third party against mr last off listings there's a process in place that amazon follows address that and so then to take a step back as to what is actually before the court what mr last off his has alleged is this issue of of keyword use and whether that keyword use gives rise to on the amazon web site were in fact appropriate and whether those constitute a trademark in french when in that instance amazon did not actually sell the branded issue and it's not precisely on point but their it's informative because in this case just as with is as with multi time machine there were competing products to mr last office and grass products that are listed in a search results page if someone is searching either for the in grass term directly or from a keyword search is linked to the search results page on what on amazon but the issue here is that to the extent that the results list shows an listing that mr last off himself initially created he often arrived amazon to have that listing and maintain that listing and that's as a matter of contract and to the extent that there are any listings that are arguably in violation then mr last off has a process to follow to get behind that and finally if these are simply competing listings meaning people who also sell artificial  turf those are those are specifically listed just as a multimission with the a photo of the product with the name of the manufacturer and the name of the seller and so again as this court found a multi time machine  shoppers who are on the internet are are savvy consumers they are reasonably prudent in the use of the internet and recognize to look for a distinction between who is selling what when they're trying to to determine what what's at issue and trying to remember listening if i can see it i have been known to purchase things through the amazon website and see the picture see the name of the sell i really don't recall unless it's part of the description the manufacturer necessarily sticking out i mean for sure for books if you get into details you'll find a publisher but for other products  d it and particularly here where in grass really isn't a manufacture so much as a i customize or or taking the big roles of artificial turf and putting them in more usable  form would it be so apparent to somebody looking at the amazon web site that this product which i was led to because i used in grass is a name for the search engine and it pops up with the amazon ad and i click on that and i get to the amazon page for that classification of product and i see a bunch of products how clear is that the product on purchasing wasn't what i started my search for we think it would be clear honor i would pour your honor to a portion of the record it's at excerpts of record twenty eight and this is a document that was provided by mr last off in response to discovery it's referenced in the declaration of  c bronner who's an amazon employee who essentially explained what is displayed here but what this shows as a result summary when there is a search performed for in grass on the amazon website and what it shows is with respect to these listings and it it may be challenging to see without blowing it up a little bit but but it does reference that the title of the product and at least on this preliminary page it doesn't show all information but it so it shows some initial information including when you when you pull up the initial product listing page yeah so this is what we would i think generally call just a results list and then when you click on what you want to actually look at the product itself it will take you to what's called the product detail page and just to clarify so that there's no confusion for the record and this is in the record at the declaration of mr shell and that starts at supplemental excerpts of record thirty four but it explains what and a sin is a sin is an amazon standard identification number and the purpose of that is so that amazon on its own terms can identify the products that supplemental excerpts of record thirty five in paragraph eight where he references that each unique product offered for sale is assigned an amazon standard identification number and then he goes on to explain and this this is first products that are sold by anyone by amazon and by third parties of course we're only talking about third party sellers in this case and the crux of the issue although the focus is on keyword search as we understand at the crux of the issue for mr last off is whether the results that flow from that keyword search that may lead to a competing listing by a third party either of a competing product or a third party that's listing against his same product is infringement and it is not here either under a theory of trademark infringement or under a theory of false advertising if we've got the argument thank you donna if there are no further questions thank you you know the first thing my friend here said for this savvy internet consumer the laws only protect smart people now is only for smart people we're protecting everybody gets confusion we've been protecting  and as far as multi time machine the big difference between that case and mine they don't have a contract with amazon they don't sell anything on amazon i had a contract with amazon i agreed to let them use my name but also in that contract that she mr brown as the exploration he goes through everything then he says if there's a mistake oh it's the search engines fault not amazon's fault so everything they said they admit they cannot control it because why would they use a comment like that purchasing search engine ads using their name in grass amazon attracted customers to its website where those customers were offered products that the early period of time that included in grass products and also competing products and a later point in time in grass was no longer selling on the website but other people were selling on the website is that the complaint yes your honor i've sold thousands of products you know you're in business for a couple of years you want to repeat customers i lost one hundred percent of them by then doing that besides tariff that was also thin poppy potty which is dog products which i've sold thousands of them on amazon and people specifically look for it and grass when they purchased it that's where they used to search where they're paying for it it's not like they're doing it  afford once to buy the word chevrolet in order to attract to its website up people who are interested in buying cars that's not a violation of the trademark chevrolet it really is an infringement well you just tell me it really is an infringement but i'm telling you is my understanding the law it's not you are allowed to use mean pepsi can use coke in its ads yo pretty regularly see people advertising using competitors names in this case if you have somebody interested in buying any kind of product there's nothing wrong with attracting people interested in that kind of product and trying to sell them a different that product from a different source as long as you're not telling them it's from the first source and so that's why i'm working hard to try to figure out exactly what your claim is your claim as i understand it is not what i understand to be a valid claim but i want to make sure i'm not losing something that you're trying to put do it's i'm trying to put it together best i can take away any business the law needs to be vetted a little more than these quick decisions and just records i mean that's my whole case here why can't your worries see what they think about this lawyer i mean we had no discovery from amazon we provided all discovery they wanted everything was either we don't know what trade secret or it's none of your business why should the jury be able to hear what i haven't done this this is emerging law or it's one hundred people i speak to side with me but that's a jury will never get that opportunity and i just felt the fact that they did not give the scot free my case should be sent back in the summary judgment reversed that's all i have and i thank