installations and exhibits which my clients and us around the world for the case concerns multiple business competition torts committed by apologies from lucy activewear and as alleged in the amended complain their advertising agency model in connection with an adam essentially guerilla marketing campaign that was designed to imitate monroe's trademarks and particularized trade dress and which also use mediately we wish to remember complaint first place because it would obviously need to meet and to be based on know so state law since it was captured in connection with the transfer which was made under twenty u c fourteen zero six and also it's my understanding that the dismissal was without prejudice as a practical matter is there statue of limitations problem that would arise if you filed in a new complaint rather than  yes there is your honor it's been several years when the complaint was initially filed i believe it had been almost two years since the event in question  case from this court in two thousand and two that work open emotions dismissed motions to monthly names are pending that if anything the plaintiffs motion the men the complaint generally rendered moot the defendant's motion to best dismissed the original particular issue that's correct so why didn't you pursue then issue well one because the complaint would be the identical complaint we believe that the complaint you meant a complaint that was proposed is sufficient and is clearly sufficient specifically holds the titles of works of of artistic expression that required secondary meaning are protected from under unfair competition under section forty three but in error here the district court determined that be amended complaint did not provide facts suggesting the name forest of white served as a source identifying function for a product or service and we believe that's clear error because at least five pages of the alleges that the term acquired secondary meaning which is essentially secondary meaning is the source identification issue with respect to trademark law so it clearly complies with with  on malice intent knowledge allegations specifically in connection with the fraud the court was upset  mourning your honour's may please the court and it gets off on behalf of the of heloise the district court correctly recognized pellets claims for what they are disguised copyright claims attempting to extend copyright protection simply where it does not exist the district court fully considered all of the claims all of the arguments all of the authorities that were presented to it and then in a thorough twenty five page decision fully analyzed all of the issues of the cases that the district court relied on in support of a of an alleged error that may have occurred there is no and in fact the reply brief doesn't address the cases we cited in our response refund appeal doesn't address any of the district court's reasoning or analysis it really focuses in on the arguments that were presented in our response brief to the district court and respectfully honor's the time to be addressing those issues as  past i don't want to belabor the point is obviously the court is very well aware of its case on policies on waiver and we briefed it but i do want to point out that from our viewpoint the majority if not all of the claims at this point have been waived because they weren't meaningfully presented to the district court would you address what the district court said was of course maybe the most difficult case in this issue in this case is that is that is the title you used white forest to his forest of light they sound awful sin why is that not a trademark at least present a jury issue as to the trademark sure you are happy to address that and you're right the district court characterized as a closer issue i think i would characterize it as it could have been issue so the district court pointed out that there were some passing references to books publications and things like that and said but there are no allegations in either the well of the initial pleading where the amended pleading in nearly one hundred pages of allegations no allegation that the marks at issue the forest of light mark served as a source identifier for any of those goods and appellants haven't argue or services what the argument is or what the argument was at the district court and the argument that's been presented to the to this court on appeal by appellants is that the mark forrest of white serves a mr monroe and insulation and your honors that's really saying the same thing as the style the artistic style the district court rejected just in different words so the argument goes well the forest of light what identify mr monroe as an artist that's really saying his artistic style the content of his artistic expression and there is no trademark law that protects that that's all the cases that we cited in our brief and the district court relied on particularly the the levy warner brothers case the whole component cases that are it idea media case the in my catalog case and the other cases just report cited on pages ten through twelve of its decision you cannot protect an artistic style public caso can't protect his cubism style and say no one else is allowed to draw this way this is this is what i'm identified for and when someone else sees a drawing that's done this way they will think i did it that's not protect trademark law as far as the other allegation of a source identifier for the installation that's really a copyright claim and that's exactly squarely again what the district court rejected is saying well you really cop installation you copy the source in the content of that again that's the subject matter of copyright law now i suspect that the reason why there has been no copyright law claim through all the interation is of of pleadings that we've had in this case and even after the dismiss without prejudice is because that claim would fail and i would point the court to appendix page seventy one which talks about the differences between the two installations mr monroe's installation that he created before and the installation that lucy put on and the reason why those differences are important in the context of copyright for this case is because under copyright law there would have to be a showing of copying the same thing or a substantial similarity between the two i don't think they can make that showing which is why i suspect they have not put that it would fail so rather than bringing a copyright claim that they knew they couldn't prove what they attempted to do was play to other state l leap not quite your honor we're not going that far no we're not saying that it cannot be protected we it's can certainly be protected under copyright law that's where well i don't want to speak that it's copyrightable but that would be the be his style yes and so perhaps i misunderstood your honour's question i apologize to the extent that mr monroe would like to protect the particular expression of his artistic works that he has created that's copyright issue and we're not saying that he cannot do that under copyright law we haven't had the chance to even argue that because that hasn't been to the extent that your honor was asking whether he can protect broadly speaking the style of his art absolutely that is not protected want under any federal or state laws of principle because that would just take so much out of the public that neither congress nor nor the states have allowed cause of action that while they do that related to that and was i think the idea this was something that w prove to the district court we touched on it in our brief as well and everybody it's even more fundamental principle that the idea of using lights on sticks that's not protective once you know these are specific boundaries of intellectual property law they've been created very carefully by congress and they serve entirely different purposes so he has pled that he has used the force of light and mark in connection with two series of light based installations and exhibitions he's source identifier well your honor it's identifying that the the mark has been used in relation to the installations and that there are some other things that are related to the installations but i'm not aware of any allegations that actually tie the the mark specifically to any goods or services that have been used and the reason why that's important your honor is because there are no u s registrations for copyright or i'm sorry for trademark with regard to this either the forest of light or the field  marks so what that essentially means is that in order to have any trademark protection if there weren't to be any it would have to be under common law under common law rights for trademarks they would have to show what specifically what specific goods and services the marks were used that the public would not just recognize the installations wouldn't just recognize the mark it would recognize the mark as a source of something a good or a service it would come down to whether it was plausibly played under twenty well certainly that's that's what the district courts point was to say you know a title of a work one per se be excluded from being a trademark if you could in theory the problem is that that hasn't pled and i think you know after however many  iterations of pleading you've gone through i suspect that the reason it wasn't played is because it can't be they would have to show actual use of the of the marks with specific goods or services and in even a specific geographic region when you have common law trademark rights i do not believe and i'm sure mr shrinker will correct me if i'm wrong but there's nothing in the complaint that says that there is a u s registration for either of the marks so for the one that we're talking about mostly today the forest of li it is a protective over trademark whether registered in one register and section forty three confirms that with respect to the question about source identification paragraphs approximately thirty through forty seven the am d complaint specifically detail the source identification feature of the marks of the trade dress forty six in particular states that the marks have acquired secondary meaning so they become to identify monroe as the want to characterize this case about art we feel that it's actually about products and services that's where some fundamental tension exists and why before the courts can actually explore the whole they star issue with respect to copy copyright pollution that there does need to be a factual record in terms of figure out what exactly is the subject matter where does it fall in the spectrum but watch a property and as to their contention waivers occurred we brought up the issue futility