this is a case where the old adage of bad facts make bad law has become a reality created by its inexcusable and outrageous conduct has unfortunately had an additional negative consequence that said the victim judgment from the district court go after its lost profits you have two measures of damages got great problems there are losses which they elected not to proceed so there's no questions here about what they lost and only whether the profits of c p i creative  play in the copyright claim and useful articles are a world unto themselves the copyright law the cases the legislative history all are clear that they are in asylum there outside the purview of products so the manufacture of these products is not infringing activity their copying of the drawings was infringing their sending amount distributing those were infringing but the manufacture sale of the knock off is not copyright infringement and is not subject to their profits are not part of the equation that you find in copyright damages the nummi case is on point and really it quotes the legislative history which i really think focuses it from thirteen b when it talks about the copyright in the work between the useful article as such would not protect against the manufacture that article copyright protection would not extend in the following cases and it talks about a copyrighted drawing that the chair in the manufacture of the chair the copyright of a model boat automobile and the manufacture and again right on point a copyright a technical drawing showing the construction machinery used in the manufacture of that acne case and the legislative history there's a difference you can not copy the drawing absolutely they were my client infringed when they they copied those drawings no question when they sent them out when they mean reproduction that's a copyright infringement i've got these drawings and sold them to other competitors they're forty people out there who are making big to stanley like products according to their records so they could have sold those drawings and made a profit or the other measure of damage is the one we articulated with the value of  where the money you save by not going out in creating the joined they could have created drawings perfectly appropriately they could have gotten out and measured the bench made a cad drawing and that's perfectly ok they could have had a perfect  scheduling identical to the victim's family product my client didn't do that they should have done that they did and get that their infringement the money they save and we have we had expert testimony at trial of a cad engineer who said if i had gone out and done this i would have it would have cost eight hundred fifty hundred dollars whatever is drawing time whatever and that would have been the measure of damages it again when you have like other products that have a t shirt with the artwork on it it's the sale of the infringing product that you know you're talking about so here we simply do not have a nexus the law is very clear there are no cases that say you can take infringing non infringing goods and of non infringing goods and put them into the equation with the court and vs i do when you talk about five or four being the allocation aspect of it that's step two but we don't get there to you when once you establish the  because the sale of non infringing goods is just not part of the equation that's a different measures of damages but it doesn't do that supreme court and we need a boat said once and ideas place before the public is object and is subject to appropriation without restraint was a useful article it's just not part of copyright and what the courts in these cases have said was if you do that you start getting into use you're starting to make copyright equal pat that's the reverse palming off that we have but there in the court was correct and cited synergistic competes with thirty four of its order saying this is the test now there are two that is liability which we're not arguing and then there's another test for damages and that's the test that and the appellate court and synergistic specifically overturned the district court because they did not identify sales which had been diverted and the record in this case does not show any sales which had been diverted to the cour there is one case plymouth and portsmouth if you go outside of court we're going to get to that in a second there's nothing in the record that any of the buyers in any of these municipalities where it is in any way influenced by the drawing of the names on the joint in portsmouth you had the agent michael amas testify to trial that the joints were unspecified they weren't required and he wasn't aware that they were part of the decision making process so we don't have anything in the record showing that any sales were diverted because you had a victor stanley's name taken off in a creative type name put on the drawings they weren't equired in many cases now i don't know make they they had a huge list of people they could have called at all these buyers at all the sales they knew all these people were that perhaps the contacting the got the wrong answer and they didn't contact i don't know but they didn't damages unlike liability synergistic which i think is the controlling case says you have to show that sales were favored you have to have sales favorite in the synergistic and there's nothing in the record to show that there were any sales were directed and the same thing on the unfair competition aspects under maryland law the court correctly stated in page twenty five twenty six of its water that the standard for compensatory damages quote must be derived from or attributed to the unfair competition there's nothing in the record again to show that the unfair competition or the false things they said on their website and such and use of the of the drawings look you have did all their profits even he's looking to stanley wasn't necessarily of a competitor you have a situation here where actually if you take the logic where you don't have to show that is driver tributed to fit any of the other forty people who make these things could come back and get a hundred percent of creative types profits because that's what the court did hear the grit that not inappropriate share not something that was shown they granted just is getting few things wrong the district court did not award my client all of his clients profits he only awarded us profit on vs i like products meaning that creative type was out there competing with all sorts of people and sometimes it specified of yes i like product and sometimes it specified a product or some other company and when creative pick made profits on sales of products that were not vs i like products vs i picture stanley we didn't get those profits so mr kaufman's claim that all of our profile of his product clients profits were awarded to my client is simply false and it would not be unjust enrichment second he said that his client did not specifically target victor stanley and i've been working on this case since two thousand and five i had full head of hair when i started on it and let me tell you there is overwhelming evidence that his client targeted my client over and over again what his client did was move a complete copy  certain it is for the unfair competition it is for the reverse passing off it is for the equitable discouragement of profits this is a this is a company that went to our client drawings cock sent them off sure had the name changed to his client's name in his client's model number not only sent it off for manufacture the products which he likes to focus on but also submitted with every b is a copyright act section and damages liability was not appealed here liability was found and entered judgment on liability for copyright infringement because of the spoliation the only issue or trial was damages five or be addressed as damages that's where we start not where we don't get to and when we get to five o four b we need to look at five o four b in the context of the fourth circuit cases with respect to talking rate damages mr cochran didn't mention any of those cases there's a clear line of cases addressing damages for copyright infringement they start with the blue chap case which is about the baltimore ravens logo and then the banner case the financial innovation case that we mentioned and then we just i'm in other case the tire engineering case this week and what those cases say is that you apply section five zero four b and what our burden is the plaintiff is is to show that the sales show the gross revenues that are attributable to the copyright infringement and i think this is where you are going your honor that the even though these are useful articles the sale of those useful articles was attributable to the copyright infringement meaning the copying of our drawings in the submitting it with the bids and what the fourth circuit has said and was shot in bonn or in phoenix renovation is that our burden is a looper all that we have to show is that the copyright infringement is reasonably related or there's some causal link to c p i gross revenues once we meet that burden the burden shifts to c p i to show that there are sales were were were attributable to something else they didn't put on evidence that they were and the district court had adequate evidence in the records and didn't correctly find that their sales of the articles which aren't copyright protected were reasonably related were attributable to the copyright infringement once he found that based on the evidence that they included with every bit their office manager said they did it to win the bid except for a and that these and the drawings for the manufacture of the goods or the way they would have had them once they did all that that that was all that the district court need to find in order to award us the profit the gross revenues on vs like products subject to them coming back and fulfilling their burden that it was attributable to something else which they did not do and that's all there is to it phoenix renovation is a great case to illustrate the point mr kaufman says that you have to limit it to the sale of the infringing article phoenix renovation involved a copyright on a contract contract for plumbing services someone stole that contract and used it in going out and performing plumbing services and the the issue on appeal in the fourth circuit was whether or not it was acceptable for the actual profits from the plumbing services obviously not copyright protected plumbing services could be awarded is damages and what the fourth circuit said is as long as they are attributable to the use of the copyrighted contract they're an acceptable measure of damages similarly entire engineering the two thousand and twelve case that we just submitted is supplemental authority a defendant went out and stole technical drawings just like here this time it was for tires for mining and what they did what they used those drawings to manufacture tires again not company rated tires the drawings were copyrighted the fourth circuit the district court instructed the jury that they should all word the plaintiffs  dollars in damages for sale of those tires useful articles the fourth circuit heard the course on her heard the case on appeal and in doing so didn't address our specific issue but did affirm the jury's award and ohio and the benita votes case which is a patent which is a state law case that doesn't mention copyrights or address the copyright act at all the fourth circuit precedent clearly supports what the judge did here he looked at the evidence in the record and he found that the sale of the vs i like products was attributable to copyright infringement and he awarded that as damages and unless the evidence wasn't sufficient and less he was clearly wrong if this is a fact issue that decision should be  briefly discuss the unfair competition and reverse passing off which are two separate cause of action one under the lanham act and one under maryland state while with respect to the lanham act we brought a claim for reverse passing off because they took our drawings they took our name off of them they took our model number off of them and they took off the cuff a great actor musician of course they put their named they put their model number on them and then they held those drawings out of themselves a classic case of reverse passing off act mr kaufman again is focused on liability and live military here is easily established the the key case is the universal furniture case again from the fourth circuit which said that there are only has to be a likelihood of confusion there was clear evidence in the record that showed that there was a likelihood of confusion in fact the case law in this state state the obvious which is that when someone takes your product and simply changes the names how else would people going to be but confused and that's what happened here and then we move into damages and what mr cochran has done is imposed a higher standard for damages that is nowhere in the fourth circuit walk let me just flip to that part of my outline here because what i'd like to start with is the synergistic scaife intention actually only ports are casey mentioned in his entire presentation as a two thousand and six case which says  issue of damages under fifteen u s c eleven seventeen a should way be equities of the dispute in exercise its discretion and whether in a word is appropriate and if so the amount thereof to my knowledge i'm not aware of the fourth circuit ruling on whether or not it's appropriate when it's appropriate to award a discouragement of the defendants profits under a reversed testing offer any other lanham case for other circuit have addressed mr kaufman's argument the six seven eight nine they've already jacked it his argument and the best case do address that is the web printing case from the seventh circuit let me just start there in the web printing case the seventh circuit explained a planing plaintiff's wishing to recover damages for a violation lanham act must prove the defendant lanham act violation that event the violation caused confusion among consumers the plaintiffs product integers all the plaintiff suffered actual injury or loss of sales profits or present value goodwill and then it goes on that the if the plaintiff did not prove the elements to for recovery of damages of course that avenue relief is for close then he says other avenues of relief however are not foreclosed in the past courts a fashion a wide ranging relief or a violation of the lanham act allowing remedies such as the recovery of defendant's profit and  you didn't hear what he did was it looked to words fees that were affected by the spoliation here which was the truth agree just as mr kaufman would agree and we specifically when we asked for fees it took out and eliminated fourteen categories and then the district court went through line by line and specifically went through and eliminated further and it was well within its discretion in doing so spent hours putting together a fee petition judge graham who is well known i think nationally for his interesting discovery issues spend a very long amount of time poring over our submission and he came back to us with questions he held a hearing  made us justify or expenses we went through it in detail with him he then came back and specifically rejected certain line items certain fees and then create a pipe maybe same argument for the district court judge there was another round of briefing and they just report judge said he was satisfied that the costs that were awarded the fees that were awarded reasonably related to the discovery violations so unless you find some abuse of discretion with respect to specific things that he he or the judge did it should be affirmed but i would say that they were very careful and very thorough in their vetting of the expenses but that they had wide discretion here both under rule thirty seven but more importantly under their inherent authority to it were a broad array of fees as part of the penalty deterrent except i had in my last thirty sixty seconds i'll just make two points with respect to be unfair competition claim under the under maryland law mr is arguing for the creation of new maryland law and i don't think this court should do that and there's nothing in maryland law that requires the showings that mr kaufman claims the district court correctly applied the baltimore betting case which is the seminole maryland case with respect to unfair competition and properly awarded damages with respect to the patent issue which is the one that brought us here today i think the district court did exactly what this court did in the croc's case did in the catalina lighting case that was the correct thing to do in the braun case there's no requirement that the requirements that mr kaufman is seeking to impose on the district court simply do not exist in this court's case luck with that i'll take my very troubling because we just got it you know as you know two days ago on a six month old case and i was struck by in the case it didn't say anything about useful articles and suicide so i went on the copyright office website to see what we could see the copyright registrations for those tires that were referred to in particularly contain the tread pattern is what was copyright so when they were selling those tires those were had the infringing element on them just like the t shirt with the artwork the tread that were being sold in this case in this tire case that they had the tires had to tread they had the infringing items that's why the case keeps talking about infringing items it never mentions useful articles because it's not a useful articles case the tires embodied the infringing element the use or file them to be a visual arts for the the tread and that was on the tires so that case is nothing to do with useful articles those tires were in body the copyrighted material on no different than a mouse pad shared anything that has the copyrightable serial and in phoenix case is also very different in the phoenix case in each and every instance they reproduced and distributed the infringing contract it wasn't that that was done and then you have these useful article every single time that they use the contract they made a reproduction of the contract so it is not the same as you have here if you have a reproduction and a copyright infringement actually occurring each time the contract was used to be sold