ok i please the court my name is marcy greer and i represent allied lamar the trademark owner and plaintiff appellant in this case this case is about trademark abandonment allied went to trial on an infringement claim and ended up with an abandonment finding their wrists not just wrist takes away its trademark forever allied had this trademark for twenty seven years it sold lots of product nine thousand bottles before trial  not before trial but up to the day that the sale stopped once a business of money what do you do with the jury finding of no likelihood of confusion here i think that stand alone there there are two ways to answer that your honor you can look at it as the invalidity defense of the band in the end which was by the way played both as an invalid a defense and a counter claim for cancellation and there were three invalidity defenses raised to the jury the instructions which came first instructed the jury to find a valid trade mart in order to find likelihood of confusion so that of the summary invalidity defenses the only one the jury found was abandonment so the jury could have read it presumably would have read that abandonment instruction to apply to the invalidity of the trademark and the likelihood of confusion so we believe that the jury would have answered that question no based on the invalidity of the trademark through  abandonment but even if the court is not convinced of that the abandonments finding stands alone as i mentioned there was a counter claim for cancellation based on abandonment in the trial court the district court made a specific declaration in the final judgment that the market's been abandoned and is therefore invalid those are his words in the judgement so even if the court disagrees that the likelihood of confusion argument was prejudiced by that the jury finding the court could reform the judgement to excise out the abandonment finding because there is no evidence of an intent not to resume use the only evidence on hundred percent of the seven insists not just ms politest testimony there are evidences of her going to trade shows her setting up appointments with potential customers importers distributors except her oil for sales she was constantly sending out priceless and marketing this product throughout the entire period from the very beginning in the late one nine hundred eighty s early one nine hundred ninety s all the way through trial that conduct didn't change she was actively using that mark sending out those priceless sending out the product this was an interesting industry is there any evidence in this record of sales of book out or little barrel after two thousand no not at all twenty fourteen but the problem there was that there was no inventory because this is a very rare industry it's a very unusual industry usually you create your product and then you get the demand this is done in the reverse you go and get the clients the customers and then look for the batches she was constantly looking for batches to have them but they were very rare and we in the record are numerous articles about the shortage of rare aged bourbon those are from years later the articles in the newspaper they were flecked what was going on at the time period and  problems which would have been years after you're alleging she was looking for the rare bourbon she testified that she was running into that problem starting in two thousand and nine and that in that time frame she was not able to get them she was a you know  was it a little bit of a disadvantage here because it's a small shop and they don't have the market power of some of these large names that can go get the batches when needed so if there is a pecking order to try and get these small batches which are rare and hard to find and by the way it's all based on relationships and so she had some strong relationships but then when you bring someone with a lot of market power they had a better shot at getting it there's the only evidence in the record contrary to that is testimony that bourbon was generally available but he's not talking about rare aged small lot that small batch lots of this bourbon in that's what she sells and the suggestion that this was cheap bourbon is just not supported by the record at all the priceless show that it was expensive it was hard to find and there's a very very limited clientele that will purchase it but that is not reason to take away the mark the market is designed to protect entrepreneurs as well as large aside and you know it takes a very long time for it to age properly in these lots were twelve twenty twenty five years old so they don't you can't just make them overnight and so that was why the trouble getting it that that's really of bourbon over there they're very locatable and the people know exactly where they are and let's have this picture of this you're not mining your people have the bourbon in their possession and they had it for years so they know what its value and i have it and his have difficulty understanding that this market and people you're not searching for this particular i get the picture that you're searching for a china part of bourbon and they will have to learn about it in these are well kept secrets i mean the alcohol industry is notorious for keeping everything close to the vest you have to develop these relationships to find this information but the reality is the uncontested evidence is she couldn't get the supply  allied could just couldn't get the supply and the law does not penalize trademark owners who are marketing their product and trying to sell it from doing that in fact i mean they really equate here sales the lack of  other a lot of it has to do with the professionalism of tasting that's of practiced art that they can they can taste a difference in the aging of the bourbon and so what you're paying allied for is that expertise that personal touch of being able to identify and decide which badges are appropriate and you know that it's also possible that batches aren't any good even though they've aged the appropriate amount of time you have to go in taste them and make sure that it's the product that you want to sell with under your label was the last time your client actually sold a bottle of what you're referred to as rare whisky in two thousand and nine that's a problem it's a problem but it's the law protects against both would what grade their grades are not actually you know but but it but in that case now again that was a case of use not intent intent means the intent to go back a day means that you don't want to just give up and leave the mark altogether and there's no evidence anywhere near this in fact the reason that it allied failed garrison was because they were in the process of redesigning their label so that they could you know find a better market for it and so those kinds of stops are the kinds of things that reasonable objective businessman would take in order to promote and sell the market and the fact that the product is not available due to says circumstances outside their control that that's not relevant to the intent question as long as the steps are being taken i think what the trial court did here was equate steps to acquire the product with steps to use the marked and they are not the same thing the statute only requires steps to use the mark existence it's a lot easier to condense a supplier to sell you the lots if you have a willing buyer that's the way this market works that's one of the reasons that inventory is not traditionally kept a lot of inventories not kept on hand it's because they typically create the demand first and then go back to at least that's the way that this business model has worked real customers don't buy things that don't exist and with those really a  problem i don't i mean i i see what you're arguing but it doesn't make a lot of sense well it's not a question of it not existing it's a question of needing to get is kind of like an option contract and people do  we're looking at it i think it's i think you can look at it any number of ways but it is a business model that is legitimate and has been successful over the years there's no basis for taking away the you do with the factual circumstance i'm trying to test your theory of you have to look at all the different circumstances of the case and how the product is sold and what is going on there if someone is just warehousing the mark so that maybe if a certain product is invented in the future or maybe a certain product like that hasn't even been brought to market becomes available that is a very different case from here where these these lots are available to someone who can get them but it it's a kind of back and forth process and the fact that there's vagaries in the industry shouldn't be a reason for punishing our clients they focus on i mean american fire equal case we talked about they were voted the presumption of abandonment because there was promoted the mark through t shirts as was the case involving the fire engines and the american eagle superimposed on the american i think all of them are news from there isn't a lot of testimony in the record but there she is allied lamar has a number of brands that it markets and there's priceless that go on and on and as well as in  ok i thought that was never the produce young there wasn't evidence of much evidence at all of the other brands this was focused on the cowboy little barrel brand and the evidence was that there was continued to its attempts to market it and and there ha texas that actually makes bourbon and released a particularly special bourbon in two thousand and thirteen that named cowboy burg he was then surprise d to be sued by allied lamarck claiming that he was infringing their trademark for cowboy little barrel bourbon and when he researched it he found that the cowboy little barrel had never been sold in the united states at all for consumption the only sales of this product were over seeds and the last sale as the court has noted was for overseas consumption and made in the year two thousand on at least according to the invoice records that were submitted trial looking at those invoice records the prior sale before two thousand and nine was in two thousand and six then any of the sales of cowboy little barrel were before that and again all of these were overseas now the invoices were literally the only evidence set up in the record at all  were electronic all of the other records in his power tele testified that treaded there were none of the records you typically see in the sale of alcoholic beverages seats bills of lading  but even assuming that those electronic invoices reflected real sales it's easy to look at the invoice is and to see the products i did calculate the per bottle price but based on the invoice it would show the number of models and price the price for this bourbon range from eight to twelve dollars a bottle there is one an authenticated exhibit in the record showing a picture of the bottle being offered online by somebody with a sixteen hundred dollars price who's now a tell it made it to trial she had no idea whether that was actually sold or whether anyone actually bought that product at that price she also mentioned what  any sales of cowboy in the barrel at that price invoices that the plaintiff itself introduced showed the eight to twelve dollars for now the law actually deals with this issue fairly case here we had at least two periods that the jury could reasonably control conclude were periods of nonuse from two thousand and nine until the time of trial when the lawsuit was filed in twenty fourteen  from two thousand and six to two thousand and not that you could have plans to resume huge despite a three year gap as you could that's that's correct the three year gap creates a prima fascia case of abandonment which then puts the burden testify i intend to use but you have to show actual plans to resume the use and the evidence has to show that intent not later not have to file a lawsuit against them and you try to show that you're still using trademark but at the time of the periods of not use so what the plaintiff needed to come up with here was evidence during those three year periods for two thousand and six to two thousand and nine to show that they had the intent to  huge number of break ins marketing them to unsophisticated foreign consumers on aware of american urban american urban traditions and if the foreign consumer light the particular brand cowboy urban cowboy little barrel that sounds cool got a note that they were selling it to japan and germany two countries were sort of very interested in the american anthem the west and so cowboy little interesting concession in her testimony which is when i asked her where does it come from she testified they purchased from one distillery she would not disclose the name of and then they shifted to a second distillery she also would disclose the name but she said sometimes we know where the bourbon comes from and sometimes we don't and the sometimes we don't mean she is buying essentially stop putting it in bottles and then shipping them overseas and over in order to avoid u s labeling laws which are very strict about yours i ask this group about the jury finding you have no likelihood of confusion and she said have to abandon the finding stands alone my question is is the jury finding no likelihood of confusion which i think they did not challenge in the district court but confusion is sufficient for the court to affirm the dismissal of a strangely infringement claims against my client that was an essential element of the claim the jury found in question number one against sex life and that is  challenged on appeal the abandonment question played two roles it was an affirmative defense against the claims of infringement but a jury finding henri court finding of aband nment can also be used to cancel a federal trademark registration and so we have a counter claim for abandonment as well as two other counter claims challenging  the registration for question one was likely confusion question two and three were two theories we had that would have if they had gone a favor resulted in cancellation the more we lost those two  and then the fourth question was abandonment which serves to defeat a claim of infringement but if a trademark is abandoned and a court enters that judgment then the us p t o will enter enter waived their appeal on the affirmative claims of infringement against us i do believe the court needs to reach the abandonment issues on our counterpoint so that the question of claim is that somehow shows and ever somehow evidence of an intent to resume use during the period of the band and i think this is fairly well brief but there's multiple problems with that the first is there was no exclusion of evidence at all in the ruling that the trial judge entered was a motion which required the parties simply to approach the bench before introducing this new whiskey and neither of those things satisfied the trademark registration which was limited to the three words capital barrel in the product carry category bourbon whiskey the dutch parks knew that when they rolled on the women yeah yeah yeah that was yes that was attached to the motion limit in so the exclusion of evidence was not incorrect and then there is a minor issue that was raised about the jury instructions correct in any case concrete simply reinforces the idea that the evidence can't be a subjective assertion by the trademark owner that someday i plan to use this in the future but there has to be thank you your honor let me first address the concrete plans that issue is not just in the jury charges also in the order denying the giant wall that is the standard the judge sparks a clog and the second circuit originally said that in silverm backed off when it realized district courts were misinterpreting what the standard was the intent to resume is different from the actual use and the standard to have concrete plans designs to get out back out there is not the standard is designed to be much more flexible not the second circuit recognise that in two different cases both the i t c case in the in process case that we cite in our papers and said this is too high a standard is it's much more flexible than that what we want  corroborating evidence of an intent to resume not just the testimony i want to i hope to god when i go to greece i hope to get better so i can return and resume my business but concrete steps let's talk about i mean i'm sorry actual cases there's not a circuit court level case that has adopted that standard but it keeps getting perpetuated through some of these district court cases here the corroboration was a lot more than just sending out mass priceless there is testimony there are e mails going to individuals because this is how this product would sold they would they would set up meetings with distributors in california this whole idea that this was only sold overseas is a misnomer the jury found it was used in u s commerce th testimony was that it was sold from kentucky to california it was eventually sold to consumers and overseas but that's because that's where the demand was and they have a right to sell the product it was through marketed to right the germans and the japanese there was marketing that there was mark in the united states i mean that is allied went to trade shows here it set up personal meetings that all this is all in miss paula tells testimony and the evidence that that was introduced through her  these these are significant demonstrations of an intent to continue use of the mark throughout the entire time period as to the likelihood of confusion  finding the abandonment and the suggestion was made that all that they were trying to do was cancel the trademark registration the question asked of the jury goes beyond trademark registrations it says did they abandon the mark so all rights to this mark will be lost as a result of this judgment if that is not excise and if this were a case where it was just a market was out there that might be an appropriate result but it's not here this case is very unlike the cases where abandonment has been  to the ruling excluding the evidence in twenty fourteen there was an opportunity to sell to us distributor one of the largest u s distributors and i jumped on that and they were able to get a color right away the color is in the record and the cola has cowboy a little barrel on it you have to use the color court may be familiar with the law of the t g v but once the certificate of label approval has been approved you have to use that down to the commas down to the specific statements and the color has the cowboy on the front of this product but it also has cowboy little barrel on the back the fact that it is a blended whiskey and not a bourbon is not relevant to the trademark analysis i mean this is the argument kind of sounds like a consumer protection case this is a trademark infringement case the trademark examiner fan and that whiskey and bourbon were sufficiently related that there was overlap and that's significant and that is a clear evidence of non an intent to the end and in the doorway during all the periods of time that we've been discussing so in summary we ask that the court set aside the abandonment finding and or at the very least find that the court bearden excluding the evidence of the subsequent sales because there's no basis for it certainly was relevant and it certainly would have made a difference and going to your question your honor about was the court aware of what the substance was well not only did the court have a summary judgement of it and full blown affidavit that detailed all of those but he declared a mistrial on the first trial on the basis of this very testimony and bed he had instructed him to approach the bench correct but but that that was the testimony he heard that testimony and declared the mistrial that was only a month before this trial and in this trial counsel again approach the bench