blatant bad faith intentional use of the stone creek mark that was designed with the intention to deceive consumers classifies its infringement as will the there was no actual damages that flowed from the infringement are you saying that if the infringement was willful that somehow damages are  mandated to address both those questions your honor the district court found actions were not willful they found that they didn't meet the willful definition by this circuit court not that it was but it had to do with it they weren't doing it to to to for deception to to get on the good reputation or whatever that they were saying they did it on purpose but not with the a does that mean so they found it to be intentional which i about when we were before this court on stone creek one card hard to defend the proposition that i ripped off sony but i didn't do it with melyssa for some of the two don't mix i  agree with you but don't you still independently have to prove damages we have to prove we don't have to prove our damages we've elected a remedy of discord of profits so we have to show some correlation between what a dead and what and that you have to show somehow that you would have been entitled to that money that they're benefiting from that well there's there's many different theories of recovery  well and the method last they did find that but that was part of the problem with stone creek one that was part of our challenge and now to end the man death if we didn't disturb that then isn't that a lot of the case it's not love the case because it wasn't specifically articulated and argued before the circuits a lot of the case precludes a court on the same level or a lower court from disturbing a higher courts findings of fact or conclusions and we were here on that precise issue we argued willfulness and the court didn't decide it and sent it back down so that was that keystone point that touchstone of a there was no good will we argued that and it was sent back down so we are now appealing that issue it's never been decided the good will but we don't need to establish whether or not we have good will in that area right we contend that we do well and there  says that such every ward quote shall constitute compensation and not a penalty so if we agreed with you that the district court was wrong in this infringement was willful if the discourse is correct that the profits are not attributable to the infringement do you agree that you don't recover those damages has to be trivial to the infringement right correct us to be attributable to the mark in the infringement so the reason i don't agree is because this is not a penalty right we have to show equitable basis to get a good score judgment of profits and that equity is the willfulness so as the th circuit has articulated that part of the basis for requiring a discord made of profits is a deterren factor so that's not a penalty that's deterrence there's two ways i guess i mean you're kind of running in circles here because you've agreed that the statute says it has to be compensation not a penalty and the lanham act doesn't allow a windfall and you have to the profits have to be attributable to the infringement so they acknowledge that they infringe the mark they denied that they did it for the purpose of trading on stone creek's good will that they did for other reasons in the district accepted that but nonetheless they're also saying the district court agreed that their sales in the midwest were not attributable to the market that they didn't make any money off of this because of the infringement which means if that's correct we're suggesting is that as a matter of equity that should be awarded to your client as essentially a punitive damage because it's not an actual damages not attributable to the to the violation  and of course this ties into another issue which is the survey evidence where they did prove that present evidence that essentially no one in the midwest had ever heard of stone creek and there is no suggestion that anyone bought their leather couches from this other entity bontoc because of the stone creek mark i understand you argue that that evidence shouldn't have been it needed nonetheless it did submit evidence and there was evidence about the very very tiny percentage of stone creek's gross sales over the years that had ever been in the midwest and that there were none in the relevant time period so there was evidence it wasn't just as if they just blankly said oh no you can't you have to prove it and attribute it to our violation mark what i think that evidence for one it contradicts the findings don't creek one and the decision that we had actual confusion demonstrated in the midwest you had actual confusion on the one person calling about a warranty claim as opposed to one person believing that your client had anything to do with the catch when they bought it right we also had people inquiring through email about hey where else can i find your product in this area what other stores do you have what other models do you have so there was those those showings of actual confusion and if you look at the survey evidence that the district court relied upon one it's our position that it should be thrown out that it was an abuse of discretion to admit it but if it's used it doesn't go to the question presented on attribut attributes and specifically says that they must show what cells were demonstrably not attributable to mark and if you look at the adidas decision by this court they said a confusion survey isn't relevant to attribut because it does not ask people who actually purchased the product hey did you purchase a product thinking it was a stone creek mark did you purchase this product for what reasons and so it doesn't even address the central issue on attribution but the court relied upon it and if we look to that survey evidence it should have been excluded one the surveys were never provided to us under rule twenty six number two the surveys were hearsay the only way to get over the surveys not being hearsay would be to rely on the residual hearsay exception but what about rule seventy three dollars that allows the expert to rely data reasonably relied upon by their expert right but that would need to be given to us so so but if they say that it was given to you in the very same form that it was given to the expert that their expert reviewed a spreadsheet or a table of the survey responses not each person's individual response that seems to be the distinction you acknowledged you received the spreadsheet and then the actual data you just didn't receive it spreads separated out into separate documents which neither did their expert as i understand from the records so how is this in any way something still suffers from flaws when we want to meet that evidence and that hearsay exception and i don't think there was any any testimony at trial where their expert said this is the type i usually rely on he went out and did his own survey evidence to show that there was no likelihood of confusion and in doing that survey we wanted to meet that evidence because he said i'm only serving the people in the bomb contracting territory but when he surveyed people in that territory we learned through zip codes that he was talking to people outside the territory that we don't know what was included in there and i know that he says most people didn't know what stone creek was but actually over eleven percent of the people identified stone creek as a furniture company which i think pretty high given the fact that only six percent of the respondents had even shopped for leather furniture but they do some math to make it look like it's worse than it is but in the end we don't know who responded to what questions and what their experience was those situations so that's not a survey a political to attribution and we want to go to attribution it is now their burden to show that the cells were not related you could look at the nintendo decision when when you have these various components of furniture or of in that case nintendo cartridges and you can't distinguish between why this purchased well you get the whole thing the whole thing has to be discords because those are ill gotten profits you want to talk about real sixty day yes your honor thank you all better get to it then i'll move quickly to rule sixty eight your honor and if this one simple  received an offer of judgment by two defendants it was a consolidated offer of twenty five thousand it was a joint on abortion under caliph th circuit law settlements are counted as judgments correct correct therefore in the end there wasn't too comparable numbers and the district twenty five thousand dollars plus zero equals twenty five thousand dollars right doesn't equal zero it equals twenty five dollars plus to correct your honor and so when you compare that we beat the offer of judgment by slang your b represent the defendants in the apple e's and what we are we finished and i don't understand this it's a consolidated offer of judgment of twenty five thousand right yes the the under the settlement there was a settlement for more than twenty five thousand dollars is there any dispute about that but with one of the parties no there's no dispute so twenty five thousand dollars plus zero you still equals twenty five thousand dollars right that's correct so doesn't count it does not count well what your authority for that the the statute itself reads quite plainly that you compare the judgment that was offered and what was offered was twenty five thousand dollars plus an injunction you compare that with the judgment that was obtained and the judgment that was obtained was an injunction and zero dollars the settlement is not part of the judgment what the  the th circuit has previously held that settlements count as judgments that isn't the case your honor when the entirety of the action was dismissed pursuant to a settlement therefore the dismissal was one with prejudice and so what the th circuit said in that instance is a dismissal with prejudice of the entire action is akin to a judge or the under rule sixty eight do that and what's that what case says that i'm not aware of a case that's been well and the statute says that you can offer a judgement and a judge at the office is not a judgment it monetary amount or just a judge just says offer a judgment could so i just say well d i offered injunction without any detail about what the injunction holds are and it's just an injection well the judge of the judgment has to i mean the offer of judgment has to be specific enough so that at the end of the day the district court can compare what about the morning of the day i mean forget the end of the day i mean just the injunction is that good enough or does the injunction had to be specific i believe it has to be specific because in order for an injunction here what was the specificity of the end of the injunction offer i'm sorry i don't have that in front of me your honor but it was i i'm sorry but i read i read the briefs i didn't see any specificity an injunction offer i thought it was all about the money it was not the injunction specifically offered i'm sorry the offer of compromise under rule sixty eight offered both an injunction and twenty five thousand dollars thank you i understand your argument let me ask one other question and that is this free ride use of trademarks so i go to new york from visiting from california and i see a trade trade name that i really like so that is really a cool trade day might come to california i don't see a single one so can i just start using that trade trademark beard in the th circuit just to happily use the trademark till i get caught well it depends your honor it depends on whether the trademark is federally registered and whether there's a nationwide rights it also matters whether that mark is a common law matter has come into the market in california such that it has such the trademark know if it's a registered trademark or on of those have nationwide right all right now let's talk about this case from the abstract to the actual was the trademark here registered after the after the use of our client began it was then registered yes so materials that was being shipped to arizona where the plaintiff is located but i didn't understand that at this point you were disputing that this was a trademark infringement well stone creek one this court told us it was a trade not infringe and so we're certainly not thirteen and i stopped as soon as we were notified by stone creek to stop so soon as they discovered it and told us to stop we stopped the thing and the trial judge said well no harm no foul of and that's because it's due to life and that's because your honor you could have called it a free ride but he called a no harm no foul well and that's because your honor there's a difference between intentionally adopting the stone creek mark you're going no question about it was intentional correct because yes there's no question it was intentional fuller it was deliberate it was choose the word it was all of the above the th circuit has a very specific definition for what willful infringement is and that's what's at issue and  willfulness requires a subjective intent to trade on the goodwill to trade on the established value of that mark trademarks are not rights and gross so the fact simply that the name is a good sounding name is not what's at issue in trademark law what what is at issue with trademarks is the goodwill that stands behind and all right so i ask counsel for appellant about this we said ok it's a trademark violation no and it's about as plain as they  wasn't trademark cases are usually really hard that wasn't really about heart but the good will there had been a finding in before it came to the th circuit right and we said we didn't disturb the factual findings your honor and so had not the district court found that it that that your client on me had not traded on the goodwill correct your honor this court specifically instructed judge reyes upon rema honor my colleague about the law the case well it seems likely but you you started this whole thing there's no two ways that your client started this whole thing by scanning and using this and committing a trademark violation but then it would seem that judge ray is is not convinced that the appellant's want everything that was made in the you know all of the profits that were made and the saying well you're not showing you know i'm not going to discords them because you're not showing that they had anything to do with that right a completely independent reason your honor why the lower the district court's judgment  be right and so let's assume that for purposes hypothetically that i agree with that but i'm still struggling with the facts and just started the whole thing then you have the chutzpah then to say yeah and why don't you pay us it that and there was a settlement with bon ton for twenty five dollars plus which would if that settlement is credited then you lose on that correct correct if we decide that correct yes it's a nice circuit law that says name escapes my yes on apportioned offers are problematic because you can't compare them with the ultimate offer mate that doesn't apply in this case though because the ultimate judgment is zero so whether let's say of that twenty five thousand know if you defined the offer of settlement as a judgment for purposes of the sixty eight rule sixty eight analysis it's not zero it's twenty five thousand dollars over twenty five thousand dollars plus zero agreed i'm sorry i don't remember for formal judgement was entered but the but the claims against on ton were dismissed as part of the settlement and the case continued on through trial with my client so it's problematic to me is that rule sixty eight speaks in terms of a party defending a claim they make this offer of judgement it doesn't talk about multiple parties and as you know is the actual i'm sorry of sinking you're in arizona practitioner you're from los angeles the arizona is very different it explicitly allows for a portion of a portion offers to join offers and talks about what has to be include with respect to attorneys fees and costs the federal rules just downright skimpy in comparison and so it's a little more challenging is to say did they beat the offer i mean that's the ultimate question did they beat the offer by refusing it and going to proceeding and my difficulty with this on a portion joining offer is there's no way to tell because they didn't go to trial against both parties they just went with one so you had an important offer and it wasn't as if when you made that offer to him you said the money the twenty five thousand dollars will come from bon ton in the injunctive relief will be against omnia it wasn't specified it was his joint on a portion offer so how do we tell i mean it it just seems defective from the outset the way we tell as we look at the judgement that was ultimately obtained and the judgment that was ultimately obtained against one party you're looking at the judgment against one party and you don't know if there was a  nd judgment and then what do we do we have to look at multiple judgments the meaning of money if you have multiple parties making in a on a portion offer yes that's what you have to do it could be problematic if if you can't tell who offered what but in this instance we don't need to worry about that because there is a single judgment against my client that is for zero and for injunction ok i think i understand you're offering your argument on rule sixteen i want to ask you to address this issue with whether any profits were attributable to the trademark infringement and what evidence was there that your client submitted that was admissible there and there was some discussion about the testimony about there were no sales after they stopped using the mark but that really wasn't admitted for that purpose i mean so what what evidence was there there was a plethora of evidence your honor and i will catalogue at that catalog that st i want to make sure that it's clear that that attribution part is an independent basis on which the lower court's ruling can be a d even if this court disregarded judge races finding on willfulness attribution was this plethora of evidence that exists submitted to opposing counsel for their review prior to its offer at trial honor all this evidence is in the record and that yes it's a strange jan cers around here but that was it submitted to counsel before it was proper offered in evidence yes under the rules and so there's no eviden y defect in in the introduction of the evidence none your own house so tells us that they had no opportunity to meet at the chala that is all in correct that is incorrect or on or sir mr benson is talking about the survey i believe the survey evidence all of it the survey data the survey evidence everything that dr cowen our survey expert relied upon was provided to the plaintive what the plaintiff is complaining about is the rd party that actually it ministers the survey the ones that go out and do the field work when they provide that data to the survey expert which is the way served trademarks surveys are done they don't provide the names and addresses of the survey participants so that information was not available to anybody the rd party survey company does not provide that information and i also have to correct something that mr benson said about that survey it was not a likelihood of confusion survey it was a recognition survey the specific purpose of it was to assess this attribution argument which is and that's evidence we submitted which is that the survey that was properly done there's been i haven't seen any any indication that it wasn't methodologically proper that that survey illustrates that there was no recognition in the bon ton trading territory and that's not hard to believe because the other evidence presented is that the plaintiff is an arizona also had another expert a gentleman by the name of doug banja see my time's expired another expert by the name of doug banja who is a marketing expert who testified extensively also about the fact of that there was a lack of recognition in the bon t territory and why and how people go about shopping for furniture it's a very local endeavor people go sit on the furniture they feel the furniture they need to have it delivered so it's something unique uniquely local and that's what  he identified the attribution issue i only had one other point that i thought was important to touch on but my time is up this impossible separation between inherent attributes of the furniture the softness of them the comfort the location of them and we're looking at the attribution part of the problem is one of the issues is these surveys is we didn't get their names and address so we don't know these people but if you even look to the other expert who who admitted in his trial test me i don't know why anybody bought these i don't know if they looked on the internet are experts highlighted that if you purchase something over one hundred dollars you research it on the internet and when you do that the google search the number one stone creek furniture is our client's website and then they're going to attribute attribute that product to them what these surveys they  that he said that nobody looks at trademark as it's essential if you are asked the question of whether or not why do people go to certain ballparks around here in san francisco and they list every possible reason except for the sport played and then the conclusion is well nobody cares about what sports played when i go there is so is it your conclusion that there's just no evidence they have that that all the evidence that well ok who has who has the burden to show that there's a link on you has the burden to show that profits are not from the trademark all right and so is there no evidence of that correct there's no evidence of these specific individuals who purchased it did so for any other reason other than the trademark so if we look at the evidence and we decide there is some evidence and it supports it maybe we would have done it differently but we think that there's enough then you lose well no but i don't see how you can it you're right you can't we wait so it's either there or it's not but essentially they're asking you to hold that trademarks for furniture should be abolished and well and you're saying and so for you to win which there's got to be zero evidence for us to w so happy to see both of you today but i don't know if i would happy to see you a rd time but that's part of my job then that's what we do