areas of law that the trial court made that require reversal st the court erred in elevating form over substance and finding that a local rule ghosheh constituted an intentional involuntary waiver of superiors right to jury trial damages despite the parties stipulation to a jury trial preparation a proposed jury instructions and verdict forms that contemplated a jury trial i wish on all issues the trial nd the court erred about of law by giving the most weight to the quote actual trial court areas about of law and excluding superior survey evidence demonstrating actual confusion where this court's jellybeans precedent counsels that the challenges to serve a desired made here should go to the weight of the survey and not its a standard of an abuse of discretion especially by the way the whole point of this kind of just closure in the pretrial statement is for notice and clearly there was notice that this was an issue that was intended to be tried there's also an amended joint pre it's not a notice rule what it is is that issues are narrowed by that time so that meetings which start very broadly after discovery is done after the parties get together significantly narrow the issues for the trial court actually try to that's damages mixed with a prior hearing where the court trying to get superior to pin down what he's seeking at quote so you're not going to make any claim a trial for lost profits to superior rather your remedy is the discordant remedy that is instructions for seeking statutory damages which are which you know the the rules say on such for damages of those can be those can be fought at any time during trial even and there was a you know a proposed instruction did which is the very definition of not abusing your discretion right now i mean we disagree with that your honor because you know to say that that even though we've set these out these issues out in both the jury instructions and the verdict form you know even if there was an over a statutory damages certain we only need one of those two things to have had our entitlement to a jury trial and if on is going to focus on the on the st one please do because a punitive damages claim is very clearly in the verdict form and so  and trying to develop programs with a health print with help with with my client with with my client work period work at st and then turn around develop their own instead of a jury could find that to be willful and trying to get damages and that situation don't my questions are related to the bench trial issue and so responding to your opposing counsel arguments about why punitive damages was mentioned in the verdict form in the jury instructions in the statement itself punitive damages where appropriate as well as appropriate equitable relief and specifically stating that this is contrary to the holding of our at seventeen court and others which are are essentially older cases are no longer good law so you have we don't have to rely checkley and i have to rely on the distinction between law and equity court the tiger direct case which is obviously the point where one equity courts have merged identifies that you also have different considerations and when you're dealing with equitable relief one of the purposes of it is to try to deter future conduct which is one of the purposes for punitive so that issue extends beyond that on the punitive issue beyond that there's a few other key points to make st there's at the point where they have chosen to not seek their chosen remedies discords mn and they're no longer seeking actual damages they don't have a sixteen any confidentiality that had existed had expired in two thousand and ten because the procter and gamble confidentiality agreement had a five year duration since the briefing in this case close to the  d there's so there's no there's no way to get to the damages in this case on the statutory damages issue the only way that statutory damages ever comes into play is if there is decision which we cite and this is dock for sixty in order for counterfeiting to exist you actually have to have a stitch for stitch a copy in other words shaklee would have actually had to have rolled out its blood testing service which doesn't do doesn't do and it would have had to have called it health three or and there's no scenario in which that happens or in fact the evidence simply confirms what the th circuit had already concluded in the order the board tory work when when you have companies that are operating in different spaces you can't possibly get to a counterspy situation where you have a knock off back so under either scenario whether it's statutory whether it's information that the district court had at its disposal including superior saying that it's chosen measure of damages discordant you have to take the statement in open court and then you have a pretrial statement section that calls you out and ask you to specify what your damages are they know what the you know exactly what they want to put in there they want to go for the shock value of putting one hundred million dollars in if you were fined they were entitled to do that but if you make that call then you have then the court set out that pass clearly enough that should not have been found to be a waiver you know i also want to address really briefly the issues of you know the other side's reliance on the plenary injunction in this matter there was a significantly fact that my clients was broader than that does not make it less likely to be in a print it shows that my client has more of a market than the other side the other side is trying to to to hone in on one segment of my clients  my client's business and and you started by using the same exact exact mark for a very similar survey to pervert perform the services of giving people personalized nutritional diet health analyses i think that's that's a very important distinction it's kind of like saying to you know to radiology things can't be things confusing is that the same exact name because one does on the x rays the other one does x rays and cases and others citing jellybeans for this proposition that this our survey should have been admissible and that would have been additional evidence of actual confusion and then finally most importantly on the actual confusion the piece of the of the murphy and the survey that was excluded but more importantly the case law big very clear that actual confusion is not a prerequisite to finding a likelihood of confusion sure when you have it which we did it is a strong showing of confusion but