apply makeup and the like i call them falsely advertise products because the undisputed expert testimony before the district court was that these defendants all ten such falsely advertised the status is we're in fact discovery with a fact disclosed discovery deadline at the end of the summer which could very well get pushed because of the various circumstances we're experiencing  is certification a declaration kind of like two ships passing in the night it wasn't at all clear to me that they were even talking about the same thing very it was very summery and  not having any scientific background really at all it i think i thought the his doctor hecht's conclusory statement that calling this grossly inaccurate was hard to digest you have a burden of making a very strong showing here about both irreparable harm and the falsity of the advertisements and i wish you could clarify for me why we should accept this as a i mean there were there were no ads attached to heap listed on his you know chronology requirement education publications about art on other things and just says that this is grossly inaccurate but there are varying kind is a scientist he is an academic and he didn't set out is not the dollar gene very clearly as to what he did and why he did it and then he set out the results of testing each and every one of the ten testimony which was hearsay ladens from mr zheng and i'd be happy to go back to the district court for for the judge to to evaluate that question that did not as you know happen instead she runs the applied be irreparable harm standard under the nd cert on the nd circuit precedent and so i think you raise an interesting question but they were never reached and i think they should have been r appears amazon has data for how many hits on your competitors website were made from your website the st is that that ignores the reputational harm that occurs to person each and every time the falsely advertised product appears on carson's product page and that harm concludes precisely compensable it's also not something that person should have to endure the notion of allowing a competitor to falsely advertise on another competitor's product page  why isn't the damage compensable your money well firstly you can't measure the harm to reputation by simply the number of click through new or can you measure the harm to kirsten's goodwill so for example there's a customer who is a long standing customer person and does about the purchase of a product is confronted with the false advertising and gets diverted there is simply no way to measure the future lost earnings that person would have earned if that customer wasn't the verdict somewhere else for the long term and  goodwill and reputation but we don't have any customer affidavits or any anything more concrete we're all still kind of presuming in the silly i think that while it's it's plausible i'm not sure that that's an adequate basis don't presume irreparable harm yes it must be proven but equity in the determination of whether it's proven must be done in accordance with the wisdom in logic that underlies equity jurors prudence in the one tradition of that particularly in the nd circuit and that's a long tradition is that literally falls comparative advertising as we have here necessarily cause irreparable harm you in so with the proof of false advertising which is literally fall into it coming up regularly on persons product pages that's the record showed seventy five times in the fifty seven day bidding for space through amazon so that their ads will appear directly opposite carson i'm not really familiar with that mechanism and i didn't see in the record a full explanation of how that would happen i think there's multiple ways in which page you know they're interested in the product you have a competitive product you want to put it right below the the cart's if you think it's fair the record shows that this is target the record for the district court shows this is a targeted attack on your product is that right that image done because you pay for it you do know the maximum number thirty dollars but you don't know how many then purchase you don't know how many things are wanted by the competitive product number but it doesn't give you a reasonable estimate of the images and that's what the law of the images read bottom is allow us to say well here is the maximum given to us we have to prove with much more certainty in this court had said in this context but you can't do that in isolation you need to adopt it with the long tradition of equity practice in the circuit which says head when somebody is literally advertising falsely in targeting in a comparative way in creating false comparative advertising with a point this that raises huge flags red flags because of immediate harm to reputation media harm to goodwill diverted sales and the factual merits in this case are far from a slam dunk for them but as to the specific issue we're dealing with today regarding their reparable harm as mr hornbeck mentioned both parties agreed that the traditional form factor test for political injunctions supplies here we think the district courts the decision was well within her discretion this position however some contrast to carson's argument in th and those keywords were completely agnostic to carson those keywords were like magnifying mirror keywords or general category two words so there was no specific targeting  is unique in that it is not a two player or essentially binary competitive market nor is this case one where one party makes false representations about a competitor specifically  your client grossly inaccurate and in what way that is correct if at all well i don't i don't want to get too into the science behind this but we believe that the the  really point to the argument that because the mirrors are quote pro slee exaggerated then it's so facto that their reputation goodwill is harmed i think this is the exact type of presumption that the data in its mind of cases prohibits i would also note that in the cases preceding e bay there are really just two players in the market or a binary market or a situation affidavit from a consumer who would say i thought less of the company because i saw this ad that i would think that that would help i would also say that perhaps something that would help would be a motion presumption but was happy to rely on the affidavit from i believe their companies like director of marketing kind of a testing to all the things we've just been talking about but there's no customer survey there was no into this market market in january of two thousand and nineteen so you know perhaps their argument is that you know they weren't ready to file i would note that because there were two cases carson didn't know about turns out to be you know question will strategic decision not to file open air injunction in that case and we're going to make that mistake again thank you yep and so to go to two very quick snapshot of amazon product page for carson and the fancy product which is falsely advertises right by the part where you would check out buying carson product that is the definition of a two player binary market the side by side somebody is interested in making a purchase that a direct false comparison is being made right then in there in for each and every time that this happens and again the record shows that it happened seventy five dollars times in a fifty seven day period  secondly and finally judge carney reid the shoe of the rd circuit case i think it is directly i don't think it is i know it is directly on point to what this court needs to do the group s t b court said hey ye applies but we also have a long tradition of enjoying collimator narrowly right away people whom gaijin literally false comparative advertisement because it's so bad and it caused such irreparable harm to to the circuit squared up the long tradition of enjoying that type of wrongful conduct with the day in the proof there was less persuasive and less compelling and less comprehensive the more you know what we have here we have an academic who's declared under oath that they're faulty advertised and we see numerous times it's coming up against persons competitive products without i think you need to reverse i think you need to direct the district court to re evaluate the clintons reparable harm in