the district court correctly found that the defendant glenn miller productions had violated the sub licensing rule but then improperly weighed conflicting evidence to find the plane disclaims provided by the doct music that originally had been recorded by glenn miller or other music under its own label glen miller orchestra and of that frankly it could sell merchandise i don't think is contemplated at that time because merchandising in the late fift for over thirty years following the entry of the one hundred fifty six license agreement led to glen miller productions the business that my productions was involved in was the operation of one touring band under the name glen miller productions during the entire lifetime of helen miller who died in one hundred sixty six there was one band during the entire time of the other principal of the agreement david mackay sr there was one band it was an intel sometime in  around nine hundred ninety eight over thirty years after the one hundred fifty six whitens ring was entered into that glen miller productions apparently started expanding into the scope of the type of the business that the company engaged and settled the settlement agreement that was entered into there was one band using the name glen orchestra that was the business of the company so there there was no reason or expectation by the millers that sometime thereafter unbeknownst to them and without any type of notice or consultation glen miller productions would then come and expanding the business  or no your honor that's incorrect most receive financial statements it's about a two page document third tashan the record and the financial statements it has a line item that says licensing would have just assume that it was referring to income generated by the band of glen miller productions one of the one hundred fifty six licenses it doesn't refer to subs licensing it doesn't refer to merchandising income and there was clearly court on the issue of the inforce ability the one hundred fifty six license agreement in that the court found that the agreement was in existence that when more productions had violated the terms of the agreement i entered into the trademark context as this court is found in at least three separate decisions the go to cut versus disney decision the brookfield versus west coast communications decision and more recently in the brother records knowing a grant waiver by the by the trademark owner and in this case although the court suggested there was actual jury i would just point out a couple of additional items number one the the district court in applying the sub licensing rule to trademark and the publicity claims applied in a manner that's consistent with the explicit provision a licensee may not enter into sub license agreements this court's decision in garner versus nike the court stated explicitly that an exclusive license which we don't even have  copyright area harris harris court also discussed the application of the sub licensing rule to the patent area so all three areas of intellectual property law are consistent that absent an explicit provision in the license agreement a light from c may not enter into sub licenses without the approval of the license or in those of those courts discuss the rationale but the principle rationale is that the license or is entitled to monitor and police the the the the means by which the the the trademark is being used and so that is not used in an improper fashion or a fashion that the license or which is the actual owner of the mark would find to be detrimental in some fashion absent any additional questions from the court i would like to reserve my remaining time to read to respond to at police arguments or answer any additional questions of the  appropriate here on the issue of latches and i want you to also address our alternative request that this court affirm the judgment of dismissal as well on the merits first  issue only assignment of error by the millers in this case is that judge matsch improperly resolved disputed issues a fact there's no assignment of error that the latches factors were improperly apply applied and in light of that because it's well recognized in fact the construct of knowledge it's official to trigger the latches period and that's in the ninth circuit cases of gero in the claims case and the dan jack case and many many other district disputed issues the fact there's no argument your honor that judge matsch improperly applied the latches factors to those undisputed facts and that's the i'm of let's talk about the receipt and received of those earliest financial statements again so ok and then what does it mean what it means is that receipt of a statement of income at page one seventy eight of the record which says licensing u k licensing your up and it also has a line for recordings and record royalties so this would be necessarily the confusion that licensing means well that's the record company money there's a the glenn miller orchestra trademark that was registered in one nine hundred sixty four it was renewed in one thousand nine hundred five it became incontestable in two thousand and three without any objection ever from the millers and certainly without any objections from helen miller who was alive when the trademark application was initially file and their complaint in this case is that we are engaging they call it someplace in sync but the fact is when they point to the the merits as well judge max's opinion all of the sudden uses the word sub licensing and it wasn't his invention of course the millers used that term but he agreements that are in the record in the testimony of david mackay jr better cited both by the court and by the miller's only refer to licensing so we injected into this case this whole notion of the subway licensing rule that doesn't belong here because there aren't any there's no factual predicate for a court to apply that concept oh no no i think my client would wish that were the case because it means to be a bigger market but the market sufficiently small and it's a relatively small but the merchandise is relatively small portion of their income that that's just never an issue so the point that's wardlow though is that the law is really clear in the ninth circuit that it's constructive knowledge which is enough to trigger the running of the latches period it doesn't have to be actual knowledge constructive knowledge alone will do it and when an entity engages in widespread open notorious conduct there's also a rule that says people have to monitor the situation and in this case there's a real discord in the record because in the one hand the millers say we didn't discover person got a cease and desist letter here we are licensing sending financial statements to them to say we license we're merchandising openly never got a question let alone a cease and desist letter up until the filing of this lawsuit in two thousand and three ten years later certainly misspend poor and her colleagues gibson dunn what i understand the concept of licensing  and in this context we had a trademark of the trademark was known it's a public record and in fact when the millers entered into the settlement agreement in one thousand nine hundred eighty that trademark had been registered for fifteen years when they ratif and even expanded the original license agreement from one thousand fifty six so we have their expensive policing efforts we have the financial statements that they got on a yearly on the latches ruling as it did judge matsch because to the extensive knowledge the extensive evidence here which was undisputed by the way of actual knowledge and what i'm referring to are first of all the miller's licensing agreements with their own licensing agents we have a licensing agreement with the richmond agency in one thousand nine hundred four which says that the rights being given to the richmond agency are subject to the senior rights of and there's a list of entities involved in that agreement two years later the lying the notion that that was some stray typo two years later there was an agreement between the millers and c m g their quote plaintiffs in this case and that agreement also has as a reservation of rights that are being given that are being given the c m g of licensing agent the senior writer of the or chris drugs plural of glen miller productions so there is an millers the the authenticity there's no issue with respect to those facts and then we have that additional fact which in this case where we're really archaeologists we're dealing with documents that nobody can testify about and that there is no testimony on but in one thousand nine hundred eighty we have a document in the record that judge matsch for first of which is a draft pleading created by the miller's attorneys in new jersey and in that document it's describing what glenn miller production did and it says glenn miller productions which actually consisted of multiple bands run throughout the country i have the actual language  like the miller children may have had more knowledge about what was going on with glen miller productions and david mackay jr who only became involved in the company after his father's death in one thousand nine hundred eighty so there is evidence in the record that there were multiple glenn miller name to a production company kaylor productions which did a television show on c b s called glen miller time and obviously there was a license given to c b s also to use the glenn miller name and the promotion of that show  clearer when they say that among the activities authorized for glendale the productions is the operation of one or more orchestras directly or through others that's what the articles o productions from licensing other orchestras to use the glenn miller orchestra name it that just doesn't make sense in that context so besides the informant's which i think we need on latches because the facts giving rise to  inquiry noticed are certainly undisputed and again i think we actually have undisputed facts showing actual knowledge so it's belt and suspenders on the latches ruling for us it is important that we get a ruling on the merits too and the reason why because litigation between the miller children and glenn miller productions goes back over thirty years now there was a series of three lawsuits referenced again in judge mathis opinion in the record in   judge paul that a trusted on real estate and the new jersey case involved royalties from r c a and there's a published the new jersey supreme court decision on that case i was the one matter that didn't settle and  and it's wrong that's right there was a disagreement about how the royalty should be distributed calculated and it was a you know if you bother to look at opinion it was a complex contractual issue  but in any event the reason why judge matts was not able to rule on the merits in our favor was because he focused on this so called self licensing rule which just doesn't have a factual basis in this case it's very easy just to check the citations that the miller's give to the so called sub licensing that judge matsch refers to and you see there's no said licensing in this case so the proper role to show how we are avoiding sub licensing because they say glenn miller productions here by licenses you licensee to use the name glen miller orchestra and then it makes the license acknowledge that the license or that we are the only ones that have the right to use the glenn miller name so we are not in any way supple licensing the ability to use the standalone glenn miller name it's crystal clear from those just one issue in the case that everyone acknowledges that we have the right to to use the music and that and that's never been challenged just so you know when you get your own i thought a broad grant of rights such has the burden of a stab wishing that such a limitation was intended that was the standard that judge matsch should have applied when he was looking at the merits but he never got there because he got hung up on the subway licensing  i would just like to respond to a couple of those points during my rebuttal period as the court can see both from argument counsel and from the briefs there are conflicting facts there conflict conflicting facts of what the miller's knew when they knew it what the financial statements show how one would interpret those financial statements and and these these conflicting facts were weighed by the district court they were weighed in a manner against the simply affirmed the one hundred fifty six license agreement and the millers went a step further and said they would not themselves operate or authorized another person to operate a band using the name  productions doesn't constitute an exclusive license to simply say it's a nine to p clause is what it is it says we will not compete with you because i think there was a i wasn't involved in case but i think it was an issue at the time that maybe the millers would go out and either start their own and entering into the license agreements with third parties it can be nothing other than a sub license they don't own the rights the owners of the rights are the millers there any licensee who is in turn authorizing third parties to use that name in some fashion so i think the records is reasonably clear and as judge matsch found in the district court this was the activity that was engaged in by glen miller productions  licensing now one of the other issues that was raised by counsel was the issue of constructive knowledge and whether or not the millers had constructive knowledge and he went through some of the the evidence that  that was considered by the court and as it is referenced in the court's opinion concerning constructive knowledge he raised the issue of license agreements that the millers had entered into with third parties to effectively merchandise the name glenn miller managed reviewed that as being the basis as as he said not of actual knowledge but it suggests actual knowledge again a finding that there was not direct actual knowledge by the millers that there were orchestras again that that is subject to different interpretations number one there's no evidence in the record that miller's prepared those license agreements or their attorneys present license agreements there's no evidence in the record that the millers were aware that a schedule of the multiple major green meant one word referred to  as opposed to orchestra singular more importantly there is conflicting evidence in the record as cited by the district court in its opinion that would militate toward a finding that the quote from the court's opinion the main business of the corporation would be to own and operate a travelling orchestra singular so again we can rely on some antics we can rely on whether a word orchis as was used in some document versus relying on the actual board of directors meetings from one hundred fifty six when the corporation was formed concerning what the purpose of the corporation would be were they in the case sr says specifically it would be to operate one orchestra  again my point is and i'm sure it's it's it's apparent to the court as there's conflicting evidence on this point the court improperly way that evidence and rule against the millers in this case and we suggest that that's reversal where