l and i will similarly refer to b p in my argument today and i would like to reserve two minutes of my argument the issue on this appeal is whether or not the district court erred in dismissing in favor of arbitration on clearly erroneous facts the district court looked at the original complaint that was filed in this matter which contained six different claims and not the amended complaint which only contained three different claims all related only to trademark ownership and the intentional interference of the trademark ownership by the by b p l the district court in its order specifically referred to wrong counts that do not exist in the correct pleading which the motion to dismiss was brought under the filed its motion to dismiss the first many complaint and that is what was argued before the district court but the district court's opinion cited to the the no longer claims an ownership in the trademark what's your response to that motion to do that but i completely disagree and the reason for that is twofold your honor number one  surrender its legally held federal trademark registration right has no effect on the underlying litigation whatsoever first off only a true legally registered owner can and can surrender a license and the actual cancellation from the us p t o in this case noted that after a search of its records busacca was the lawful the law is that federal registration does not create a trademark the trademark comes from use and the right to it is in the nature of a property right based on common law registration does not create any property right in the trademark it purely provide it merely provides evidence of ownership and the owner of a federal trademark registration who never stops using the mark in interstate commerce retains all common law rights in the transferred the rights to be c i doesn't that create some kind of a presumption that the common law rights of gone with it is not the possibility of b i realize that we've got that we have if we pierce the veil here we're going to find we have the same person standing behind the curtain but but technically b c i could be controlled by somebody else and b c i could end up suing for using a trademark that it's transferred to it that's exactly right and that's why our position is p c i is not a party to this case cannot be a party to this case with the p t o but they acquired the the common law rights but the comp but that again your honor that has not happened in that's because the u s p t o matter is on hold pending the outcome of this case the bottom line is there is  still now a dispute between mussa and b p who owns the trademark rights our position is that as a matter of law either by the federal registration which buso had every right to cancel or by its common law usage interstate commerce continuously since two thousand and one at a very minimum which recognizes establishes in buso the common law rights now if hussein had every right to transfer those to b c i n b c i took those rights then absolutely we would not be a party to this case but the problem is b p else says the u s p t o the wrongfully wrongfully cancelled that trademark they had no right to do that and stevenson who is bruce is counsel in that matter stated to the u s p t o which is part of the record here is that because b p claims that it has some interest in the federally registered trademark even though its name never appears on the record even though the only entity that ever had it was t x i when i registered it they have vowed not only that they had the right to own it but there were no other owners so in that case it's only  because it's personal to the owners of the corporation you can tell me that you don't want to answer the question but i haven't heard an explanation i don't have an explanation for your honor i don't know the reasoning behind that but now if we were to send this let's suppose for purposes of my question that we were to decide that the district court was correct on the merits of sending this to arbitration notwithstanding any errors just court might have made does the arbitrator get to decide these questions or does that go back now to the transferred anything to it if i had nothing to legally transfer them b c i has no standing to bring any kind of registration action before the us p t o so that the bottom line is this has to be decided whether it's decided by an arbitrator or whether it gets decided by as a matter of law by you guys because i think that you guys as a matter of law can determine that i'm sorry i'm sorry i  as soon as that came out i knew that was the wrong thing to say and i say seriously apologize i believe that this court can as a matter of the law decide that b p has no rights  no for the facts no depositions nothing that would be of any used to a court in deciding who owns this trademark only the federal registration part of it your honor not the common law rights that seems consistent with your position that the district court was correct court analyzed the original complaint rather than the first and then complained yes if that's error at all why isn't the error harmless the error is not harmless because if you look at the original complaint and what the district court cited two she sided two specifically counts five and six which don't exist in the amended complaint and the original complaint deals with declaratory judgment against  rather than affirmative judgment in favor of do so and to enforce its rights under the federal law and to have injunctive relief all right you've exceeded your time will give you a minute for rebuttal thank you the first thing i want to do is clarify the situation circumstances as it relates to the federal registration so the federal register issues cancelled so be usa or bruce's opposing counsel is referred to  our response was well we don't necessarily agree with that because b usa has forfeited its right by cancelling registration and it didn't own any  transfer because all its common law rights emanated from the use of the registration which was pursuant to a private license agreement and so all its rights were junior to my clients so what is it that you want this this development with p c i what is it that you want this court do we want i want the court to dismiss the people and see if we do that does that does that does that moot that the district court's order to arbitration it does and says everything to the p t o that's correct for decision on the application for registration by p c i presumably whatever the p t o just sides and in terms of who who owns this would then basically moot any any arbitration that could have been held anyway with respect to ownership correct what else is left with respect to ownership well there is a debate between the parties which was not raised in the complaint before the district court with respect royalties decide that well in terms of your motion to dismiss the appeal is that motion buyable only if we determine there are no remaining common law rights in both transfer of common rights as well my understanding of your motion to dismiss was on the basis that it's moot because that gave away all of the right that had in the trademark but opposing counsel say that both the retains common law right the trademark so my question to you was if we agree with both that common law rights have been retained does your motion to dismiss fa intentionally vague on this point ok if we just agree with your interpretation of whether or not common law rights exist if we disagree with you about that and come to the conclusion that there are common law rights remaining in both there's your motion to dismiss f yes although i don't see how that can happen as a matter of law for a number of reasons first because booster or be usa has admitted that it transferred its come all right said admitted that  transfer was not effectuate it right if the court doesn't agree that the appeal should be dismissed then what's your position with respect to who decides the trademark ownership issue is it then get decided by the i's right it's claims of use so that would be have to be fleshed out before there's a potential that it could be stayed pending arbitration counsel i'm looking at the response to order th it in my response and in big treat party's response i cite the section where they say that the the transfer they may use some qualifying language or some purported transfer is stalled st the operative word there on page two it says both it is the common law owner of the trademark by usage and then it goes on i believe in it says that the transfer is stalled now one thing i'd like to point out with respect to that statement but that's not a clear  ownership and i don't think that's a fair characterization of the document where i it does say in there that the transfer is stalls so the premise there is that there was a transfer that was made but then he doesn't think the transfer of the common law right what's your take on the district court's reliance on the original complaint as opposed to the first amended complaint to make its ruling our position that's harmless error to how can that be harmless error if the complaints different and so whether or not the court dismissed the fraud claim a person or friends claim is really irrelevant it's just hard for me to know whether or not the district court would have perhaps viewed the case differently if it wasn't it in both of your interests to bring it back to the court's attention to let the judge clarify i think i think that's a fair question are in retrospect i wish we would have done that why can't we do it now by remained in it  it's not so if we determine it's not moot then why can't we do what you wish you had done a ritually and send it back to the district court to consider under the correct compliance i think that this panel can certainly do that but i don't think it's appropriate given the order that was issued by the district court which is very clear that the claims for declaratory relief require arbitration because of the expansive nature of the arbitration clause in the license agreement and the fact that the trademark rights are rise from stemmed from that very license agreement if the court took that approach would have been be appropriate to ask the district court to rule on the the merits of the motion to dismiss in the first instance that you've raised in this court i think it's i think it's this court it's for this court to decide that issue so we don't have to continue to incurred expense on a moot issue you know the based on the cancellation registration and the transfer of the common law rights there's no relief that can be afforded the parties here the district court  is not appropriate the district court cannot enter a declaration stating that the usa is the owner of the registration as opposed to be i cannot enter a declaration stating that  there's another proceeding in which the question of ownership of the jury or right is going to be determined and as an arbitrator i would i would prefer to defer and wait until the video that decision i don't want to be in  contrary i don't want to issue decision as an arbitrator that ends up contrary to a decision issued by the p t o now we have we have competing decisions so one side one party would decision maker would defer to the other well it's the question yes and i understand in my response focuses on who are the parties to the respective actions the arbitrator would only have authority to decide questions as between  issues i think that's why we're asking well again if you were to go down to to the arbitrator our position with respect to ownership we don't think that there's a viable issue there but if we  this point are part of what you do there is there is some risk that the arbitrator would decide not to arbitrate the matter pending decision by the p t o and would stay his hand or her hand pending p t o decision and in fact that's the position you would take before the arbitrator merits issue the arbitrator might say i don't know if that's what the effect of what's going on in the p t o is but i will i will defer until the p t o decides the question that's very and you would probably make that motion in the alternative whether you want to say so now or not it's likely that's what you would you would do before the arbitrator well i think we have the very same discussion before there which are that we're having here today with respect to aside from your reference to the response to the order to show cause what else are you relying on to negate the existence of the common law rights well run down them so there is the representation that's that in the record that is in the record is that in the record that elizabeth for us yes i believe it is attached to the response to the most to dismiss in your that all common law rights were transferred to be c i and the reason for that is because that beast that the usa recognize that there was a problem with its registration rights  making false claims then it says boo say it has never admitted that it forfeited its rights to the trademark either as the common law or registered owner of the mark contrary to what b p put in their reply and that is the common law owner of the trademark by usage and the real party in interest based on that back to the c i did d c i ever represented either buso or p c i represent to any body here or in washington d rights have been transferred i have not seen that your honor but i don't want to absolutely disagree with opposing counsel but i have not seen it because i know the pleadings that we wrote and i know the responses that we wrote opposing counsel specifically refers to an attachment to the response to the motion to dismiss and that attachment he thinks that both this claims all common law right that haven't been transferred to be so you don't recall any such document i do not and i'm looking very quickly at our response to the motion to dismiss and again i don't see anywhere where that has been admitted again it's the same a basically the same quote we say ledgers it gooses actions immediately mooted the appeal when it forfeited all alleged ownership interests in common law rights s p t o can make a full decision on all the merits of the ownership here because as mr abu said the claim is for their claim b p s claim against p c i is that there was a fraudulent i believe that's the representations were bound by it but i don't know that it's representation and i also don't know the entire context it would have been made in because again i believe that d c i can only eat up tain whatever legal rights do so i had an effect but that could be both the registration rights and the common law rights it could be your honor it could be do we have a copy of the actual of the transfer from from  seen it as a been filed publicly in anything i'm not sure of that i would think that maybe in the u s but i am not part of that proceeding and i do not know the answer to that