leaves the congress has decided to punish that more severely than the example i would i would use a set of panasonic example where you got a trademark that isn't identical isn't really substantially identical you if you're between the good and the company that's what counterfeit protection the traveling with designed to remedy we're looking at the consumer i we love we to confuse the consumer are we likely to make them believe that a good or service as a ta think the question that answered a question your honor is what tripped up the sixth circuit and why we suggest that this report not follow that lead if we're speaking in terms of the literal incarnation the item that was on my starbucks cup this morning whether it's true whether there is an authentic or false or spurious remark is a matter of where it came from was it did it fall off the back of a truck was it copied was it received from the hands of style or if it's a real starbucks cup but the two groups because each one had a right to use this motel six mark at some point in time correct yes your honor and it was that right yes around forty fifty hospitality never had a right to use yes right so is it possible that this recruited we exercised her discretion she could say well you know i think there are exceptional circumstances for each one because at some point in time they had a right to use it and then the ross that but as for fourteen fifteen there's no excuse there and that was counterfeit auburn this year well i think that this that comparison draws the importance about associate of property and what we're really trying to defend in trademark law but as a matter of the definition of counterfeit both move tell six mark or any other mark is that it brings with it a certain business reputation for a certain level of quality if you really want to associated with that then you're you're right about the service being provided but it's the policy behind it right yes you are and i will soon have to drop some bright line rule that says you can read every one of these cases where does the district court have some room to exercise judgment based on the facts of each case you know you're i don't agree i wouldn't argue that there's a point in that sense we have to decide what the statute means but if your point there is that ability to find or not find the except in exceptional nature of an infringement there's also a question of of damages  you know what damage this does a party suffer from one day's over use of a particular trademark that's something that's in the in the code of this recording can it is a mandatory no at that point and treble damages are mandatory distinguish between goods and services here it is these seems to me these franchising situations are maybe a special breed of case here and  or attempts to do trade on that that mark when we're talking about an identical or substantially identical mark we're talking about situations where there's little to no chance that a consumer  there's no harm to motel six but even if we agree with you she should we remain in the case because it isn't possible that the trial judge in exercising her discretion could say you know each one of the folks they operator but as i understand it resurrected exclusively the motel six which again would tell the reasonable consumer all this is a motel six again right so something we have diversion results for the two different groups of straight mark infringement from others necessarily that there's counterfeiting but i'm not sure i agree with that because of the exceptional circumstances exception doesn't that exceptional circumstances exception here the trial judge the power you need to do me to evaluate the facts and circumstances of each case to decide well you know what this is kind of a close one i'm not going to i'm going to say this counterfeit even though there was trademark in for nature has already been decided by the jury and with judges have the opportunity to consider that when we went on a motions generally speaking i'm not suggesting that the court should adopt rule but anytime there's an infringement there's  there's there's nothing in the statute suggests that you can make that jump have to have this extra finding that not only was there an infringement likelihood of confusion is just for a few moments ago but also that the the m analysis to play is there no there is you're on just forgive me i'm calling of judge james decision i believe in deciding the question of attorney's fees she dispensed with the exception of  extenuating circumstances that would cause her to in the exercise of her discretion not give trouble damages and attorneys fees and you're right i guess what i would come out on that is that decision or that determination has already been made in of bad heart and punishment and i would submit to you that the same analysis it would apply to the counterfeiting questions the question really came down to whether as a matter of whether this would of interpretation  distinguish the facts in this case from a good situation well i don't know that we can i mean we can we distinguish anything i suppose if we try but i think you're what you're getting a encourage fraudsters who are interested in in the sort of behavior to go wrong get the real thing as opposed to simply making a really good or near perfect facsimile just one last question f wrote at six forty six f third one thirty eighth two thousand and eleven case where he did in the context of copyright it points out and i don't just picking out one section but long standing rule for common law that quote in the absence