and the evidence of this record had before it that was sufficient not only to defeat defendant summary judgment motion but hello grant to allow it to grant summary judgment favor springboards and i also like to state that all the cases that we have cited as well as the opponent aside it does not say that a nonprofit cannot infringe on a trademark it only says certain activities will not constitute infringement as to  first issue confusion of definition of commercial use has they misrepresented springboards legal arguments or based soley on income or she is which obviously is their church sell off or for sell distribution or advertising of any goods or service on or connection to of which use of such use rather than simply use in commerce there's a lot of attention made that points out that i'll go back to the argument but they were very successful in summer reading programs because they wanted to make sure that the students didn't fall you know didn't fall behind in the summer lag that's people talk about all the time when the kids are away from school so they from a third party with my momma because i bought a t shirt for a third party with your mark yeah but also when you go out and try to get somebody to make them for you we need your issue a purchase order or a request they they didn't but that they copied exactly the same color schemes the same wording the same program for teachers authorized to buy your client's products directly or did yes well usually goes to the librarian products right the teachers usually bomb or the libraries usually buy the products and give it out to the parents and students so i would seriously my point is that typically the teachers at least the parents and students don't buy the product directly from your right so if they're confused that's not confusion in the marketplace you know ok how many what's the evidence on how many purchasers who would otherwise have purchased from your client were confused you got confused where was where was the potential for action i think it's it was a librarian but anybody that attends a conference this would say that it's exactly the same thing and so and those people that go to the conferences  the librarians and the teachers that buy those products and so you know this is this is the attitude at some of them had is that why should we buy your products we can make them ourselves we will why are you going to make them o be nervous just you know kind of to help us through it you know we've read all your briefs and so on and so full of just trying to get a good grip on it as the point was raised about the confusion the other side says well they never heard of unit pri small geographical area you know limited to you know where located their big h i s d you know biggest sticks in the country etc etc and they say nothing magic about the term millionaire you know so they have these products etc etc so we're trying to fit this within the cases that we have to you know deal with with with very much so so helpless to district court disagree it's it's not just it's not descriptive although we're not trying to protect a descriptive way you know if you tell your kids hey it's great to be reading they words that's fine tell them that or you can even scribe in literature but only when you use our but why do you have to use r s zero because you saw it in a conference because your teachers went there and because you know it's a very successful and we do have it that the deposition from their side that we took that said that the and actually raise reading scores and that's why they they kept on doing it i present as it was a very successful it was evidence in the record through depositions or decorations or whatever that connex is the guy's trademark for so you can so coca cola products or even given away and say coca cola because it's infringing on their trip markets also goes for the whole concept of trademarks is origin of goods quality of services where these were inferior more i mean inferior copies because although it said the same word but they weren't they were well our client takes a lot of pride in his quality and you know some of the stuff that they so that's kind of what it's about but the big thing is like i said it's only all the cases that they cited and we cited do not say that nonprofits cannot infringe they only say that nonprofits if they do certain activities like parodies criticizing or or just describing somebody is good for somebody straight more is ok because you're not competing against them they're competing against us because they made of themsel of bought from us and it's exact same thing and we got those trademarks on it i mean and then they distribute to the kids now another problem that i think judge hitler had was the whole concept of  charter schools because they are funded by the taxpayer and so you know that that makes him a nonprofit but i meet it just because they gave away the services they gave away these products is saying the same thing and then that's a commercial matter of law because there being no requirement that he demonstrate commercial use in order to establish his claim and saying it's much the so that at least as i misstated one point of dispute here always raised on appeal and he says that if the diff we determine the district court was wrong on that legal point thing like a color flavored they in their shop make a bunch of caps that say coca cola on the red caps and lunch they serve to kids koa and coca cola cups is that a trademark infringement or you have to have it in if they're not selling anything and that has the what they're for for going by real coca cola in the market and creating their own coca cola and selling it labeled i mean giving it to they're using coca cola cups logos trademarks and if you have buying it from coca cola if they are selling it a good or service in connection with the mark of the trademark holder they're not repeating it they're certainly distributing it again look i'm just reading what the statue flyers don't actually see distributing its is alone distributing but they're distributing it means that it's got to be in connection with the sale for good or to distribute in the trademark holders position that a tangential connection to commercial activity somehow establishes the commercial use requirement under the animal that position is contrary to other circuit court rulings is not been before this court if for instance the ninth circuit in bosnia determined that a website that allows users to reach to reach advertising through tintin u a d path was still found to be noncommercial in the ninth circuit said that this was not a lan act violation like last attend circuit in utah lighthouse rule they use an instrumentality of interstate commerce even if that is use in commerce does not mean such use is necessarily associations with a market from buying a competing product using the same or substantially similar mark and to allow them are coded to distinguish his product from that of his rivals now use in commas the mark that the trademark holder possesses it also requires that the infringers use be in connection with goods or services in a manner that is likely to cause confusion among consumers as to the goods and services source or sponsorship thus the liability to attach a defendant must use a mark in connection with the goods  appellate misplaces its reliance on the acquisition of goods were talking about from a third party and then passing those items to incentivize students to read now the schools that were part of the program for h i s doing those the what was handed out to the students with things that were printed in the eighty's the print shop in town there was a difficult it's t shirts and braces the only things that were purchased from augusta were banners that they could not print inside the print so and there were five of them that were purchased they did not include springboards marks included houston i asked the millionaire summer reading program that was the million dollar read now there were certain items that were donated to the schools and by local organizations that wanted to support the summer reading program all of those items were given away h i s h i s d absorb all of the program cost related with its summer reading program which was only over the summer period when school was out and it was in place to help prevent the summer slide and so the library assumed the direct libraries or services at that time said we'd look in the district we have two hundred thousand students research shows that if the students really five books over the summer period it would help prevent this on the sl and that is how they came up with eight as the millionaire club because they wanted to students to read a total of a million books that's how it got here no none of a j is these announcements about his program had a commercial  component things were sent home with the students right before school let out to tell them that we have a summer reading program that we want you to engage in because we have to research understand it does can help prevent a summer slide each student  y five books and you can check out the books from houston public library that was what was done and sent out to the students to their parents no at what point in time that it would point in time today j s t become aware of the mark of spring board in terms of h i s d s you know sort of process i mean assume at some point in time a change he did become aware that there was a mean year mark can you help me understand when it was and how if at all that factored into anything or was it the lawsuit that came about at the time to suit was filed during a deposition which i personally attended with a deposed teachers none of the teachers none of the library services people were aware of springboard they moved for relief to the court to get an extension of time on summary judgment briefing period they also moved for relief of time to supplement their summary judgment brief after they already filed it they also moved the court  to file a second amended complaint and it was only nonsense the clarification is that they wanted to make and that's all under the abuse of discretion and the court only needed to be reasonable about it's really in the court have about the commercial use piece ok so what from ha s t s the point is an additional ground if any does the case turn on whether we agree about the you know commercial use part you heard earlier discussion about confusion aspect but is there or i mean is a rise or fall on the commercial use it does not affect my third point that i wanted to get to is the likelihood of confusion is indispensable to appellant's claims of trademark infringement and false designation of origin yet the apparent appellant scarcely mentions that at all there are several factors that inform that analysis one the strength of the plane is mark two the similarity of design between the marks three similarity of the products for identity of retail outlets and purchasers five similarity of advertising media used six defendants intent seven actual confusion and eight in the degree of care exercised by potential purchasers no training to the first factor a words millionaire a club that's an obviously for determining similarity because the evidence of the record established that age as you consistently used the additional in unique identifier in houston i is d in conjunction with millionaire c which undercuts any superficial similarities between the marks appellant does not have a registered mark for millionaire club that is not at issue here because they did not have a list of marks for that now the products and schools and school districts and not students i will skip down to the six factor there is no evidence in the record that any ties d intended to derive benefits from appellant reputation in fact the evidence is opposite because a j as the personnel involved in the houston i as de millionaire club had no knowledge about appellant are its marks so the library services which created this read summer reading program appellant failed to show any actual confusion instead it relied on declarations of a third party witnesses that should have been disregarded because they came in after the close of discovery and we never had a chance to depose those individuals so they submitted these doing a summary judgment and those declarations were not cited to substantiate actual confusion but rather solely to support the reputation of appellants mars now the decorous did say that they were familiar with the palettes products and services and that they were confused upon encountering a tie as d's program but none of the declarations say that they were actual consumers of any of the products so you can't show that refer to it year there was also three depositions taken after discovery because of hurricane katrina now i was going to go too much into the of the denial of our updated motion for summary judgment because it's a piece of this question review and i know that's kind of hard to overcome but in those circumstances i know at least one of our depositions was interrupted by katrina and so we had to deficits too and i know that was part but anyway so that's only part i want to bring in about the extra evidence that we would be able to bring in to trial of and contrary and adding like i said adding a change day to the beginning of it doesn't change that the the confusion part it's just a factor of how does your current define it's market is it regional geographic to certain  of no if they go to a lot of the regional conferences but they also go sue some of the national ones i know they want to win in chicago that i'm also tough in my head but i know they go since national conversation conferences or other librarians and teachers and some of the students go to and there's actually quite a few in texas that d s students themselves love to go to because our client usually does a lot of with disney characters of course we get authorization from the disney to do that but you know and it's a big party for the kids they just love it and with us also limousines involved and you know we come in the in air gets a big celebrations and stuff like that where it wears the other thirteen percent of the market or the i don't know if you know i use these are not excluded are exempt from commercial use what's your best case is has this is commercial excuse me what is your best case is what happened here is commercial vs who all the cases did not know who exactly are on point and that's count criticism doesn't count describing somebody services doesn't count because you're not selling or offering you know opponent really focus on selling because they didn't sell it that's not that's not the only reason you can infringe if you're