no your honor that phrase says the not been presented and that's one of the problems with the injunction order and what i'd like to do is there are three issues that i'd like to address today and that's one of the issues that i'd like to read because these are critical questions and i think your hon is hitting the point so the first issue would be the issue of of ownership of the mark that's critical because the judgement is a matter of law found in abandonment as a matter of law and there's count of veiling contradicting evidence which i'm happy to bring to the court with record cites i'll get to that the second issue would like to address today for purposes of oral argument is the world wide injunction in the problems with the worldwide injunction the third as she would like to address today for purposes is thomas of the pred the end dispensable party in the faith to join him and denial of motion dismiss which is inextricably intertwined with the ownership issue so before i move to those addressing your honour's question i think that this is a case where the forest and not just the trees is extremely important because the whole reason for trademark law the whole purpose for its existence is not simply to preserve protect the legacy and the authenticity of the creation but also to protect the rights of the individual owners to that mark in the case of bands multiple joint owners so to address your honest question let me take this out of order which is the issue of the worldwide injunction there are procedural problems with the world wide injunction and substance and problems with the worldwide injunction maybe maybe start with  founding member of the commodore's but would preclude use in a promotional set your honor actually the injunction i'm reading the injunction order itself because this is odd in the sense that the judgment as a matter of law took an injunction order that on page one footnote one states has no fine factual findings or conclusions of law that have any effect whatsoever on at that light or trial and yet the judgment as a matter of law without taking any additional evidence reaches back to the injunction order and the judgment as a matter of law says you cannot use the terms of the two thousand and fourteen commodores you cannot use the term of that quote mcclary is free to make fair use of the commodores bark to provide historically accurate information about his tenure as a commodore well yes they do now emily have it wrong and you're honest could be i'm wrong about it but i thought they said they don't care if you use the name mcclary in relationship to and describing him specifically as the founder of the commodores here's the fundamental problem we can't agree on what fair you see as he should be entitled to say the commodores apostrophe thomas mcclary he is a founding member even if he has no longer any statement was more sweeping than that your statement in response to judge new sims question simply put was there was no way the name a clarion commodores could appear in the same sentence the same phrase the same clause and in fact they say you can use it hears in that matter the problem is we cannot agree on fair use so that's why they are that would they agree that would be fair use they agree that and them what if he uses the term the commodores fought with thomas mcclary which is factually accurate the commodores founder thomas mcclary which is factually accurate then what happens is he going to be hit with another injunction injunction is you going to be hit for violation of the injunction because they cannot agree on fair use what does and does not constitute fair use and at some point we have this court to clarify what is fair use because fair use is that which even assuming he is not a trademark on or this is why i want to drive this issue through what you would like would you like this court to do if i have it right is to hypothesize about other possible uses beyond the ones that they said they have no objection to your honor i'm not asking the court to this is a very busy circuit i think is the busiest in the nation what i'm asking the court to do is clarify as to the injunction at some point i would like to get to the issue of ownership because i think there's a fundamental problem in judgment as matter of law but what i would like the court to do is to give further guidance in clarification on the issue of fair use because thomas mcclary is in time while i was a though if i hear it in substance that fair use would mean the following clary were to say a that would be ok if he alternatively wouldn't say that too would be ok but if he says see that wouldn't that's the kind of guidance you're asking us to postulate the possibility that you might want to do this and that would be ok but you might want to do that and that would looks to me like the let me finish certainly it looks to me what you're asking us to do is to give something that would be very advisory in nation in nature maybe i'm a separate that exactly does my concern so that's why i'm asking the court to clarify fair use my concern is that first of all that you understand that we're generally not in the business of giving advisory if we have enough difficulty deciding i understand he says in controversies when we have real conflict i understand that so what i'd like to do is if i've answered your honour's questions as to the fair use what i'd like to do is move to the issues or other problem with the injunction and the move back to the issue of the ownership or because we don't even get to the injunction if the court agrees that this judgment as a matter of law takes an entire body of case law third circuit the second circuit the ninth circuit and rejects that body of case law that recognizes that before we get there let me answer the other question which your honor raised regarding the injunction which is the injunction took no evidence at trial there was no hearing for the prominent injunction and the injunction did not go through the  of factors which were more specified in vanity fair in particular the issues of comedy and substantial effect and this circuit international has also adopted the substantial effects standard so there's no analysis of that and there is no determination whether thomas mcclary should even be joined outside the united states for work in the morning why do we say that when we look at record with minimal evidence pursuant to half a day was that were never subject to cross examination what we have presented to this court with detail exhausting record cites is to show that there is no support for any notion that there is a substantial effect of thomas mcclary sly performances in australia in the united states even though the issue wasn't try mab moved to the argument of joining us for you before you get to that i just want to ask a little bit and i will give you the time don't worry about the time i'm just looking at certainly honor and i want to do that there was actual would there are three responses to that your honor first of all confusion is morphed into the issue of ownership which brings me to the problem with the judgment as a matter of law ownership and confusion are two different things and those are dealt in the case law by stating that the poor performers cannot perform under the commodores name whether it's in the united states or overseas without the permission consent of the other issue of confusion that's easily remedied by obtaining the consent of the other performers or performing with a qualifier in for example the commodores apostrophe thomas mcclary now the other component of confusion which is that confusion over c s performing before a live audience in australia is impossible or close to impossible why would i possibly say that because in australia you have a completely different audience you have different exchange you have different monetary terms you have a audience that is never going to morph in the audience in the united states and in fact if there is any confusion currently going on it is the confusion with orange and king performing currently in the united states when it is just the two of them so when people buy these tickets what they're getting is simply  outside the record no i'm just going to answer the request and so i'm just asking a simple record question their record does not reflect whether or not a c t m had been granted or in or denied by e c c e c commodore not plural and our time a corporation that was challenge that is still in litigation that has not been resolved but they originally did have their trademark filed held the mark so until it's challenged as your honor appreciates the united states try marks of developed by use subsequently registration outside the united states there develop by registration there also tried marks that thomas is there a leaving no your honor because the litmus test for departure marsh versus treadwell discusses this a litmus test for departure is not whether you're standing on stage jointly performing with the band the question is whether you are continuing to work the mark and the problem with this is thomas mcclary his partnership interests were never cashed out there is a message as a practical matter of fact didn't he and  career as does i say that in the blue break yeah he uses the word split he but it doesn't mean that he left the band his his shares for the corporation were not cashed out there's no evidence of that his mcclary continued or on revenue performing as one of the commodores he attended numerous public events a store he would get a threesome with yet he would get royalties only on the stuff that he was involved in when he was with the commodores he wasn't getting royalties for new recordings that had occurred after he had left that is not necessary you honor her breed mike i'm simply asking whether that is accurate as a fact i'm not asking you to spin the law continues to be part of the band at that time that's day three eight zero twenty twenty one mike larry has always and still receives his royalties which your honor asked about the city three seventy nine one nine hundred ninety one three seventy one eighty four eighty five part of a yes he has and this goes to the issue of joint ownership that is the critical question because the question of whether you are divested of your rights to the mark as defined in the allana matt under eleven twenty seven is whether you see using the martin use being the commercial use of the mark not standing on stage always playing with the band and with the intent never of i understand the essence of the argument and help me if i don't have it right all of the member may have left the band and had no further involvement with it for an extensive period of time the former not the is their record evidence that he played with the band between nine hundred ninety four after that date yes and before zero nine what record evidence is there that he played with the band your honor he had  got those facts wrong and if i do just point me in the record to where i would get it right c e c admits as to a specific date the thomas mcclary appeared with commodores as a talking about prior to zero nine and after eighty four eighty five is there any record evidence that he actually either appeared on stage with the band or artist and creating a new song or something like that no your honor as to specific dates no is there testimony supporting that he continued to work the mark as the commodores and continued to have a relationship with orange and king thank you your honor i appreciate your time what what are how i read the district court order he says basically the eleventh circuit told me to address this comprehensively and he just has you know the teapot but i think i mean if he actually was still a member of the partnership then that would relate to whether or not other members of the partnership could co four that there was the amended partnership agreement right and and that says that the partnership holds the trademarks pretty clearly right i mean that's what the the eighty four agreement says it's actually clearer than the seventy eight agreement in that regard right yes your honor ok and then in then it's after that that the  tommy letter it was dated right ok yeah right i think that's right ok so if if it's true that that letter was a say my question for you in order to help me understand so i mean that we get you know we ask sometimes so except for me that he's still in the partnership at the time the king and orange transfer their trademark to  o his argument is i don't disagree with the real world in the sense that i wasn't there and i didn't do anything and they were there and they did do many things and yes it true for almost twenty five years but i still had some legal right because i didn't formally withdraw notwithstanding what the contracts what is your response to that the answer is no it seems to me we don't have any jurisdiction to address that  write right i'm asking a different question a question i'm asking is not going to the merits of whether it was easily is right or wrong about that but whether we have the power to entertain it on the front end at this point and i'm i don't think that we do unless we could honestly say it's into inextricably intertwined with the injunction which is plain before this court because this case is not over two i mean this is a provisional into lockett tory even though it's the review of a permanent injunction and she's right just every right to be here on that i'm just asking about the dismissal performing which is d e three seventy one at one twenty three one twenty four again thomas mcclary did not specify day d e three seventy nine at two forty six again not specify particular dates when he is still performing with the commodores but he does not have to perform in the case of marsh vs treadwell and then the subsequent treadwell us p t o to be a decision those cases concern managers benny ashburn the manager of the commodores also had a trademark in the commodore's name you need not be a performer robi re turns on and we quote the language this is why lawyers have to read the full opinions that the judges labor over what drug robey versus weight grade was not that he walked off the stage engaged in a complete cessation he wasn't even collecting royalties he's in prison once he's incarcerated he's not touring then and then he died and we know he's not perform and then so there was absolutely no continued playing his guitar authentically and the audience is hearing songs that he co wrote co produced authentically performing he is working the mark as the lanham act defines it the other thing your honor ask questions about partnership versus ownership the partnership agreement the one that's operative because the previous agreement was subservient within the g p i in toto because there is an integration clause at the end of the g p i in toto that there had to be a riot in nasty eight three six one dash one at seventeen in addition pursuant to that partnership agreement just like the one before if mcclary had with withdrawn from the side engagement and then it says the members and the group as a whole code would jointly and not several e the sole and exclusive  become a leading member then the remaining members automatically without notice would become jointly the sole and exclusive owners of the rights to the name i think different that's right your honor and  response to that is three fold first of all the first agreement to two which your honor preferred that agreement was no longer in effect because there is a subsequent moton agreement that became in effect the nine hundred eighty three motown agreement but this is standard language in contracts because the recording company generally wants to deal with the corporation and they don't want performers going off and performing on their own but neither of those agreements control the law and the language helps us in the motown agreement the joint ownership of these partners and that's why marsh vs tried well kingsmen step are all being decided the way they are because we protect the founding members reiss whether they're all on stage still performing they are not divested of their ownership rights and what