tell before we get started i wanted to make a request i have products samples mr foster jadeja has objected to it our position as it is part of the record they were photographed that it would be helpful to illustrate the relatedness of the products so here with your permission i will bring them up if not all of them in the back registration which was a block letter registration so to completely ignore that was improper in our opinion the other issue so i think that it's reversed we're know just by going on that one factor alone and that issues you can reverse based on that point alone is that he didn't go through all the sleep craft factors and it's incumbent upon the district court ninth circuit law that he do that and he did not products to this point cars and when it comes to this third party views which they didn't prove by the way all they had was six registrations from the patent trimmer office website and those were for any kind of tour of the occult that is enough to show dilution of the hot wheels mean that's that's right in mattel's wheelhouse of the types of products that they sell under the hot wheels brand marching channels clearly was we submitted evidence that there was an overlap and that mattel's may be broader but vehicles are also sold the actual confusion and this is the other point where i think that you can reverse as well is under saying nice circuit case if we have evidence of actual confusion in the form of a survey which we did we had to  factors as well that let's say for example if you have a survey were in only one survey and it's eight percent that you have evidence of strong evidence of intent that doesn't that intent should carry the day because you get a presumption at that point that there's trigger that standard that you are taking later in the thank yous in particular the one that i'm relying upon it was twenty seven and a half percent confusion right sharon by the survey and that's almost identical to what we have in our word march survey here is twenty percent o license or because these are just trucks like big trucks small versions big trucks so that's why they had that all over the packaging so that was not brought before no evidence to support it in terms of what the impact of that ho it just depends on the continuum how discriminating just that would be right but the point being that there's no evidence to show what that discrimination discriminating nature of those customers would be it's just an argument that has been made and i think that by price and the evidence we showed in the record it's actually the opposite that these are the types of customers that are not going to spend a lot of time looking at the trademarks and trying to decipher who's who and was also a very there was an undeniable point of access here the person who designed the hot riggs logo was a former mattel employee who worked in the hot wheels division the owner of the company who i morning you're already out on fox on behalf of the tories let me begin just by proposing that date of choice is not running away from the other sleep craft factors we can address those factors where the court can just look at two products and say well there's several or so that answer yes and in fact we do there is a case that was not cited in any of the briefs and i think specifically of pages seven twenty two two seven twenty three says it is true that the question of any likelihood of confusion or mistake depends on many factors including the type of product involved the manner of distribution of the product the market for the product the products function and the sea similarity between the registered marks and the alleged infringing word or phrase the court goes on to say but the latter that is the similarity the registered marks and the alleged infringing word or phrase is the one essential feature without which the others have no probative value and in fact in that case the court looked at the wonder compelling survey that says another i think if you never get to the survey is that what you're saying i think that actually it's a very good question because in sleeper lounge there was a search or there was no evidence of a survey and the court that have said you you can rest it on just this single issue such as the federal circuit and kellog case what they have said is that really all of these factors are different perspectives different ways of looking at the same issue and the reason why you may choose to move on to the other issues is if there are some questions some doubt about the single issue that you've looked at so far but the key issue is really similarity and so just kind of all  going back to your question similarity if there's no evidence of similarity by the judge but there is presented compelling evidence of a consumer survey then that surely would be something that would be important but i think that in this case here we don't you know judges don't always spell out every single reason why they are ruling in a certain way if someone says if a judge says that there is no evidence of similarity here then i think we have to go back to something that you said judge rawlinson in the previous argument which is we have to adopt the presumption of judicial regularity and that is we're going to presume that unless there's something in the evidence in the record to the contrary that the judges d go to the interest of jets and a ball here and that is the evidence of actual confusion and fact in the excerpts of record of page three twenty seven to twenty eight mattel admitted that there had never been in the three years that the products were competing against one another never been any actual consumer confusion and if we look to the survey the word marks is a completely inappropriate test because as the cases throughout this circuit have said again and again the march must be considered in their entirety and as they appear in the marketplace there's no evidence to the record to say that they appeared just as words in the market place on the products as they were being sold so that higher survey results should be completely discounted as for the lower survey result of net seven percent that as was pointed out at the excerpts of record ten sixteen through ten seventeen in a declaration provided by jaded towards expert there was a flu and a half percent margin of error there because the sample was so small so not only is it seven percent but it could very well be lower than that and that's something that trier of fact would have through though but that's something also that as a matter of law can be resolved although i can't point out for the court in response to your earlier question about what the ninth circuit has said the absolute bottom line is the diluting treatise on the subject  mccarthy on trademarks has said there are no cases found actual confusion with a consumer survey less than ten percent ten percent or more is required in this case we don't even meet that threshold also when i was writing  considered you don't do a little miracle weighing out for this way three this way and one neutral and so you come up with the math mathematical equation but i think our case is transport consideration about the factors and then once you consider them all there is no obligation to do a mathematical accounting but you still have to look at all of them before coming to a resolution as to whether or not it's a matter of law precise holding there are several cases that have said you can look at only a subset of factors but it made it legal and just circuit there has not been a case that says we will address this one factor similarity alone and not even look at the others is the practice you're absolutely right your honor to look at other factors but it is not necessary and the courts have said in the ninth circuit that we should not adopt a rigid mechanical rule and i don't disagree with that but that's a long way from spain you look at one factor and if that one factor in your view is positive you don't look at the other fact is that those are two different that's the different concepts in m why should there be a difference why should you when they're applying the similar not have to go through the other sleep factors but if they're if they are similar you do well for example if marks are completely dissimilar then it doesn't really matter factors that you know hard cases absolutely absolutely many of them are hard cases but not all of them are and this one was found that because of differences in the fark one whimsical and slanted the other in sweet black lettering the issue that can be resolved as a matter of law if there is no material issue of fact and there is none here there is none because the mosques are substantially different right there are certain similarities which if in isolation compared can say though those are similar to what others do go through the sleet craft factors of that which is i think there would probably be most appropriate for the district judge to do so if it's determined by this court to to clear a circuit split and say that you have to go through all of them but but this court also if it wants to has that right it's a matter of law they know about they can be reviewed  and then it gives a site and the products themselves show that it's used alone as well i wanted to rebut that the other point is in terms of actual confusion three years is minimal i mean that's really nothing it's difficult to have thing in that case the ninth circuit did look at other factors or the absence of evidence of those factors so there was no actual confusion he had all the judge had in that situation was looking at the similarities of the marks so are you asking for remains and i'm now i'm asking two things i would prefer to have judgment on liability which for mattel and i know that you can do that but either way it has to go back because it's li to the district court on reading and to apply all of the factors and then have a clean slate to adjudicate this case for i think that is the simplest obviously my preference is to have liability but that would be the simple