good afternoon ladies and gentlemen this is judge easterbrook speaking judge st even on i are in the courtroom in chicago judge hamilton is participating by phone and of course all the lawyers are participating by phone so that has a potential for problems because it may be difficult for somebody who's speaking to know when somebody else has started to speak i will see if it's necessary to interrupt and get things back on track but with a little bit of patience i'm sure we can make this process work so our case for argument this afternoon is most from couper's against  states no corn syrup and which has an icon with a slash through it for the same act the district court found that it was literally true but enjoined it and we believe that that ruling should be reversed for three reasons the st being that the district court erred in finding that the packaging which makes no comparative claim and which is true was potentially misleading the nd reason is that the miller coors offered no evidence of consumer deception of the substantial segment which is required turn and quietly false claim and the rd is that there was no evidence of irreparable harm and that in light  me johnson and st off it was eric to say that our packaging could be considered misleading in contrast in many cases including those relied upon by the district  court packaging makes no comparative claim and the district court noted that in the initial mail order they don't refer to miller coors as product and they don't also refer generically to other beers and they don't say less then or compared to other s we believe that under those circumstances miller corps has failed to show a likelihood of success on the st element of a material false statement the packaging is true and also unambiguous talking what's about inside the packaging mr bennett meets the gist or court looked beyond the packaging here and looked instead at the broader advertising campaign is it your argument that that was incorrect for the court to do that the court should have just focused on the packaging and if so how does that square with eli lilly we think that  we think that we would prevail on both of those points we do think that in a lanham act case the district court is required to look at the context of each advertisement and not as we say in some of our cases mix and match elements from others but where you do have an implied lee false claim and there is not a actual literal falshood as well that you have to you can't just the multiple that these multiple ads cause consumers who saw the packaging to think of miller course that they took away from the package the in the beer message and there is no evidence of that and no evidence that a consumer understood the packaging to be making this implies a false comparative claim and so we think that that is consistent with that and if you look at eli lilly versus our law an important statement there is that the injury and the deception must occur as a result of the false statement that's alleged and when you look at this campaign as it's described obviously the cornerstone the largest portion of it was the super bowl ad called special delivery which the district court found to be truthful and not misleading and therefore even if you did look at the overall campaign under the eli lilly framework the difference there's no misleading campaign statement that somehow makes something that's true false as well so d we have a unique situation here where the district court is a true not misleading statement that miller coors products are brewed with corn syrup to suggest or conclude that a consumer might take away from the packaging that these were as opposed to brewed with and so we think that our position is consistent with our with food and in fact all of course says that you don't have to have a survey to show evidence of consumer deception because of the early stages of pulmonary junction here miller corps did do a survey but they chose to do it only of a commercial we did do a survey so there was time to do it and there the evidence that the court had in our little deception involved an f d a study where they had looked at this precise issue  found that consumers witness understand it without context i found that the added eli lilly was directly comparative and disparaging and i know the courts aware that it included monster imagery and razor fanning's and things like weird stuff in a directly compared to situation and they had evidence and i lifted a large cheese producer to the court noted would understand how consumers were looking at this actually stop doing business and so we think we were entirely different from our  foods on on each one of those points and then when you look at the type of evidence that was required in our lives and you would say that none of it is present here and when you get to our packaging being true and unambiguous and concluding that you can't just say there's a commercial out there that we're going to interpret this on because if the commercial is found to be true and not misleading as well i think you run into the line of cases that we cite that say two different things the st is a series of cases that say you cannot extrapolate from a finding i wanted to others and those cases are the sister gets papa john's case where the court of appeal said well yes papa john's better ingredients better pizza may have been misleading as to sauce and but there's no evidence that is as two hundred other types of places it was used or  th circuit had a great line that i think is insightful for this where it says yes you can look at context but you can't quote assume context close quote and there they had three different letters or written publications that were alleged to be deceptive and the court said you can't just assume consumers look at each one of these and reach conclusions based on and there has to be actual evidence and then the stokely van camp case from the southern district of new york is quite on point that was a liquid case a drink case where gator ate powerade was deceptive because they said power it was complete and they had previously done ads where they said gator aid is not complete and even under the circumstances where the district court did not complete a competitive claim against gator and was misleading or not accurate the court declined to enjoy non comparative statements on the packaging or the advertising that said power it was complete and so whether in looking at context you can never look at other types of advertising or look at it together i think what you run into is the rights like the advocates from this court where package itself a claim about rice then in each one of the parts of the campaign they would have both the name and then both the false rice claim and so there this court looked at looked at multiple types of advertising but found in each one of them that they had the problems with them and then when you look at the lack of evidence that was presented to the district court you would see that one of the things that happened here was a tactical decision we would submit because no survey could have shown that consumers would have taken away the message miller players wanted to take away from our packaging but you only have a survey on one super bowl commercial presented to the district court and they did another one later would acknowledge that it was a t v commercial and those commercials were found to be not misleading but easterbrook you mentioned the super bowl commercial and of course super bowl that super bowl was a good long time ago is an huzzard bush still using that campaign and the packaging we are using the packaging compliant with the plumbing or injunction your honor so the packaging no preservatives no artificial flavors and we use our ingredients but we struck the mea least with respect to the request for injunctive relief as opposed to a request for damages i am not aware of any of the super bowl commercials running and i certainly think we would all have seen them if they were so we do a very good point maybe on the michael jordan  broadcast has made available for free all of the old super bowls so you can watch the green bay packers when the buffalo bills lose the super bowl as often as you want i think if we this heavy reliance on time warner cable the nd circuit cases we believe the air time warner was not implied falsity case and so i was explicitly stated it was excusing any evidence of confusion to show implied falsity so that's an important difference it also involves a literal false claim regarding high definition versus cable and so it was expressly comparative to cable and they made a generic reference there to quote unquote cable which is literally only time warner where the commercial is running and so we don't have any of that with our caca doing here and we don't think the time warner would apply in casseroles which is another case another course relies on its to the same effect it was a literally false ad about this guy city and motor oil and they made an express comparison to quote other leading brands turning now to the presumption of irreparable harm or are less depending on how you like to refer to it does require proof irreparable harm before a final resolution and that requirement as the supreme court pointed out in winter and th ine with what seemed to me fairly abstract arguments about the effects of the bay and winter here but let me ask you to consider the following hypothetical that in to seek an injunction based on trademark infringement likelihood of confusion and you convince the court that this is material of this leading and it's confusing to consumers  what else should you have to prove in practical terms to get an injunction to to support a finding of likely or reparable harm i think that there  cases to talk about how in that context someone of appalling off type contacts one of the things you can show is a decline and brand health or that when a consumer looks at those two they associate one with the other and that because this is low taste or however whatever negative aspect of it was that made them feel less good  fayez lexmark from the supreme court i think provides some nice guidance to what you can show which is a reputational injury flowing directly from the deception associated with it and they talk about   that in the false advertising context you would probably have to go back to abbott versus me johnson to look at the presumptions and what they talk there about is the need that the presumption applies before the case is required to be directly comparative before they would apply the presumption secondly this court looked at this issue very closely in florida works there after  even including the same all three judges who had written promise to answer there's any number of ways to prove economic harm other than lost sales which the case all recognizes to be lexmark in the supreme court but like to reserve my  and emphasize this was a factual finding by judge conley he made a factual finding that the package was comparative so that finding needs to be reviewed on a clear error standard and the basis for his factual finding was that the market we're talking about here the market for premium light beers is essentially a binary or trinary market our products miller lite in course light and bud light comprise about one hundred percent of that category and so that was intellectual in judge connally's determination that this is a comparative advertisement next he looked at the context of the entire  campaign which included advertisements before the super bowl talking about the importance of knowing what is in your beer and how and how her voice was going to put labels on its beer so people would know what it is in its beer and encouraging others to put labels on their beer so consumers would know what is in their beer then they ran the super bowl commercials that said they use corn syrup and then they follow that up with a series of commercials that say there is no corn syrup in our beer and the penultimate comparative is we have a photograph of it on page twenty four dollars of our brief where they have the bud light king holding the package and saying miller you should do what we're doing you should put a label on your beer because people want to know what is in their beer so in light of all that judge connelly made the determination that the packaging is comparative and i think judge this we do not believe this case is moot while it may be the case that and hauser bush has no longer been running the ads that they have now been enjoined from running they never said they will that they don't intend to run those ads and they've never said they don't intend to run the ads that have been enjoined if that injunction in fact were lifted and i think with respect to the ads that were joined there's a reason for that again the this campaign was sort of a three stage attack stage one he is talking about consumers ought to know what is in their beer and emphasizing that in the beer stage to the super bowl commercials talking about beer and so in light of that i don't see where there's anything at all about the current situation i think the reason they're not running those middle ads is because they're you lose a great deal of their effectiveness when they go back to the scope of what the court should look at it determining this you've mentioned in the district court relied on the full ad campaign how can the scope of a false statement in an advertisement be looked at in terms of in a tire campaign without some evidence that the purchaser who goes in looked at this packaging actually has seen the full advertisement without some evidence that those who go and buy the beer in this packaging actually have seen the full campaign how can you that be the relative comparison well st to be clear what the district court did was look to these other contexts to determine whether or not the packaging was comparative he found the statement to be misleading just as he did with respect to that same statements in billboards in print ads and other couldn't look at the other ads in determining the misleading nature of the made with brood with statements when we think he should but he did not look to those other ads here with respect to determine the  the packaging was misleading he looked to the context of the entire campaign to determine the comparative nature of it and i think that just simply makes great sense if this is probably not a perfect example but if the two days before an election where there are two candidates candidate a runs an ad that says you should vote for me because i pay my taxes  that's a comparative ad because it's clearly a reference to party the the the other candidate and i think here given the limited scope of the market  it's appropriate to say a reference such as the no corn syrup on the packaging is in fact comparative of the only other competitors that are in the market but the court specifically said viewed in the context of the full advertising campaign a reasonable jury could find that the implicit message of the packaging is that other beers contain corn syrup and the court made that determination in analyzing the fal people saw the other advertisements but then my point doesn't the district court if you're making a determination of likelihood of success on the merits and you're assessing whether or not the statement at issue in the end is misleading doesn't the court have to to make that determination or have some evidence if it's analyzing misleading based on the full campaign that purchasers actually saw the full campaign and then evidence well i'd see that that if you say you have to prove it at trial and the evidence was this was an integrated campaign that it was deliberately designed to have consumers hear the messages from all these different sources and have the packaging be a follow up to the ads that were run at the super bowl me this was all staged to run in a process and so at least at the plymouth or injunction stage i think that's sufficient evidence for the district court to rely on in determining that in fact the nature of the ads were misleading and this was there any specific evidence that those who go out and purchase the beer in that packaging saw this bigger campaign of advertisements i'm hesitating only because i know there is such evidence but i don't know whether or not it was before judge conley at the time of the packaging injunction but i know that in some of the surveys that were taken in fact it was in the wind survey that was taken where there were a number of respondents that were asked the question did they see other ads wasn't with respect to packaging but today see other ads and there was that evidence in front of judge calmly that a number of the respondents to the survey had seen other ads face back in september and that is how we can treat as a lanham act violation reference to corn syrup as an ingredient in plainest products one point it says identifies themselves corn syrup as an ingredient in their products a was one as i can tell that's an unprecedented theory under  the lanham act and your brief attempts to distinguish the st health opinion from our court by trying to distinguish between government language and the place its own language is the the statements that we seek to enjoin here are statements that imply that there is corn syrup in the final product and the word ingredient it's in the final product but it could also mean it's not in the final product and the context in which we use that on our website we do not believe gives anybody the misleading impression that there  contains corn syrup it's listed is rd on the list which under regulations has to be in order of quantity how is it possible to say that something that contains corn syrup does not contain corn syrup i'm sorry your honor but i do not believe that our website uses the word contain i didn't meant it has a website i mentioned the bottle and can and the packaging materials are packaging materials and are bottles and cans again do not list corn syrup or use the word contain and in fact that's one of the things that and i was a bush has been pushing they say you should put labels on your beer as well but we have not done that and we don't have anything that i'm aware of that says our beer contains corn syrup we listed as an ingredient on our website and and so to go back to judge hamilton's question that's what i think is misleading here is the inference the implication from the context in which they make their statements and they do a cup of tea her use the word ingredient but most of their statements are not using the word ingredient most of their statements are the made with users brewed with one hundred percent less corn syrup all  which imply that there is corn syrup in the final product and part of the evidence that was before judge conley was that even though we have this language on our website before those super bowl ads we didn't receive ok we didn't before the super bowl ads we didn't hear any evidence or any complaints from consumers indicating they felt that there was corn syrup in the final product as soon as the super bowl ads ran we received a number of complaints i think was a proximately two hundred complaints from consumers complaining about corn syrup in their beer which is evidence that the context makes a difference people didn't misunderstand were didn't take the wrong impression or didn't get impression from our website that there was corn syrup in the final product but they got that impression from the and hauser bush ads because that's what and hauser bush intended as we demonstrated i think pretty thoroughly in our submissions back in march and april where we quoted extensively from interviews that their vice president in charge of bud light gave immediately after the super bowl talking about  how they did consumer surveys that show people were concerned about what they consumed and what they put into their bodies and obviously you don't consume corn syrup when you drink miller lite or bud question of the irreparable harm issue and make two points there st of all we did insert evidence of irreparable harm here so we're not relying merely on the felt there was corn syrup in it we did we put in evidence of a social media study that was done by professor wind where he examined the social media communications that occurred post super bowl and the number of times that people made comments about corn syrup in our beer but could be any of that evidence was any of that linked to the packaging as opposed to the super bowl commercial no it wasn't it was it was linked to the message and graduate asked that question because it brings me to the fat final point i wanted to make i think what and hauser bush's argument boils down to is if they  integrated campaign with the message that there is corn syrup in dealer lighting corps light and that campaign they use billboards and t v ads and printed ads and radio ads and point of sale displays and packaging we have to have a survey or evidence with respect to each one of those media as opposed to evidence about the message and i i just don't think that makes any sense i don't think there's any case law that supports that the case law talks about the statements and what judge conley did is in joint statements he didn't join statements on certain types of media and not on other types of media he enjoying the statements and and so i think it would be a mistake for this court to decide that we would have to have evidence with respect to every different kind of advertising media in which the same statements were made in order to enjoin those statements with respect to that  media if i may i know i'm getting close to the end of my time i'd like to turn glee briefly to the irreparable harm issue as i mentioned before we do have evidence of irreparable harm but also on the presumption issue  the law is somewhat unclear but i think there is a very good reason to distinguish trademark and lanham act cases from cat in cases in copyright cases where a presumption posy bay has been abolished and the reason is if if someone infringes my patent and basically sells my product under their name will have lost sales but they have is exactly the kind of thing that is typically papen sated by money damages there's no reason to presume that i have suffered some irreparable harm the harm i have suffered is harm that can be recovered through money damages if somebody lies about my product goes out and says things in the public that are untrue about my product that creates exactly the kind of reputational harm that the lan is designed to protect and that is traditionally associated with irreparable harm so i do think that there is a strong reason for distinguishing e bay and not applying it to trademark cases because there is a reason to presume irreparable harm in those types of cases there may not be such a reason to infer irreparable harm in a patent case in cases you often have the same argument that if a company or somebody takes a patent and goes out and produces that product that they there is a reference of harm to the reputation of the patent holder because whatever that product is isn't the same quality and if somebody wants to make that argument they can and i think the teaching of of e bay in the cases subsequent is in that case they're going to have to they're not entitled to a presumption they're going to have to prove that the product was inferior and in fact it had this reputational damage but if true well my product i think does give rise to that presumption why would that differ from the lanham act context because in the patent context i'm making that same reputational argument because not every pat is a case where you can make that argument somebody may infringe your patent but they may be making a very high quality product maybe make it exactly the way i was making it and so i don't have that argument there's no reason to presume that i have saying something false about my product and simply of your making my product using my patent again we're talking about a presumption so who should have the burden of proof on something it's not conclusive but there is a reason to presume reputational damage in trademark cases that i don't think exists in patent cases according to my notes i believe my time has expired of servatius about herself which i know the judge easterbrook actually wrote in addition to the government there's the servatius and the same basis at the hole in the for many years people in the business has been describing p p l in the same way and so we have both industry and government i don't think that case is distinguishable in any meaningful way in addition here there is  evidence at all that shows any high to go to judge judy's questions between true super bowl commercials and this packaging the packaging is the really key difference different in a key way which is it makes no express comparative claim everything else that was being compared to the other injunction that was issued may was a comparative matter if they wanted to enjoin this they had time and no doubt looked at actual harm even if there is a presumption so thank you very much your honour's was appreciated thank you counsel case was taken under advisement