know honor's this case is about information directory services provided to the farsi speaking community in southern california after the up people in the one nine hundred seventy s a large number of farsi speaking people started immigrat this country from iran and neighboring countries their client could top corporation a client started offering information directly services to that group beginning in one thousand nine hundred eighty one couple of weeks before thanksgiving when  arrived in this country shortly after within a couple of weeks that after he started off with his services there are three components of those services that are relevant to this case there's a telephone book directory called yellow pages talk to you about the trademark infringement unfair competition claims one four six seven and the district courts dismissed all those claims in the first complaint as to the ms ronnie defendants we wrote down enough that the pleading stage to go forward with the case the district court judge said that the areas of practice the fields of endeavor information director services and legal services were so different that this competing on record i guess my question is are those factors enough to show confusion under the sleek craft factors for confusion which is what we have to look at what the district would have to look yes the are i mean the allegation is that they are providing a competing legal directory service so people when they call in they'll be directed to other law firms under and affiliated with them otherwise to be two for the first question there is a explain filipino yellow pages itself says itself says just because there are two terms are generic the combination is not necessarily generic referring to park and fly for example a california cooler junior chamber of commerce those are all found to be valid they were not overruled by decision in this case we're not even talking about we're not using and that's one of the things if if you want to has your honour's up looked at our pleadings or briefs and i be specific about our opening brief for the case pages fifty six to sixty two and of reply belief in the middle the case from forty to forty seven is replete with the mistakes and failures of the judge of the district court so referring to my post the fifth edition section twelve forty two stating that the combination of foreign english words are protectable as a mark in the united states referencing law your circle california cooler and then junior chamber of commerce those of found to be protectable and this is again a unique combination coin combination which is not iranian yellow pages yellow pages it is a change is altered acquired extensive secondary meaning by exclusive use in the market for decades to this day so so if i may go back to judge misapplied the law the standard the judge misapplied the standard in  years then two thousand and fourteen it was finally this of course they come back to the court again of course they had a good case i mean they had to do that why wouldn't they want to talk to you about the one thousand and seven so much order and judgment that you have claimed is a contract i guess first you really argue you have notice of the deficiencies of your contract claim when the district court ruled there was no contract as part of your intentional interference of economic  relations claim that the court dismissed against them as ronnie defendants like or or didn't you know that at that time there was an issue with the contract claim that you should cure in your pleadings if a cause of well it seems like i review the issue with your contract claim seems to be that you have never put forth any legal analysis as to why the nine hundred ninety seven settlement order is a contract i guess you have any legal authority for that argument or how did you properly allege that it was a contract well ok again they admitted there was a contract in their answer clear that there was an agreement in place the agreement did exactly what is covered in fact the stipulated judgment referred to the plaintiff's marks and identified the same marks that are issue here identical marks yellow page you know on the  that's what you do the court should have given us should have applied the standard which the court this circuit has devised which says dismissal with prejudice of the if to amend is not appropriate unless it is clear  cases for the contract case what if there was some previous deficiencies you could have been using secured i mean this is a contract be performed expecting that it was upheld it was but it was appeared to so i just don't see how the court observed your hono just want to make sure i ask you one question about the attorneys he's after our case in sun earth and the supreme court's case and i think it was octane we have to give the district court abus discretion or review her abuse of discretion in their attorney speed terminations under the lanham act and the district court had to find that this case was exceptional it seems like the district court made a record in its written orders for the attorneys fees for both the ms ronnie and the melie defendants i guess why are the reasons in that order regarding the frivolousness of the cames especially in light of the district court's previous findings this totality of circumstances i don't want to belabor the point but how is this case exceptional given what could help had which is armed with a stipulated judgment and agreement which was ask that the honorable court affirmed the district court's orders that are being challenge here today for the following reasons and then i'll go into detail about each of the claims and why the court properly dismissed the claims as it relates to the trademark infringement claims to the district court properly found that confusion was unlikely in light of the totally unrelated service is that the measuring law firm and the yellow  pages provide and based upon this court's decision in mary versus cable in b c the court found that confusion would be unlikely and as a matter of law dismissed those claims let me let's talk about what i was asking a lot of questions about and that was the leave to amend under cases for us like eminence capital versus asked be on this court has held that the men should be given pretty liberally i think you understand that concept in the court there held that dismissed with prejudice without leave to men is not appropriate less than a point could not be saved by amendment and i'm just my questions for you is this shouldn't the district court have given could top at least one chance to amend its trademark and unfair competition claims under our courts law i don't think so your honor not in this case i think that amendment would have been futile here there's just no escaping the fact that  services that are provided by the appellant khattab yellow pages services and the measuring law offices are just totally different services and there's just no way around that i mean for khattab to be able to allege that know most law firms and most lawyers they refer cases to others if it's a practice outside of their area that does not rise to the lead of a competitor competing with a yellow pages directory service it's still a law firm that confusion with that by providing legal directory services in and around and we just don't think those claims would have been saved with the minute there was a motion for reconsideration filed asking for leave to a man and there was requires a proffered amended complaint but it would certainly require some set of facts as an explanation as to what those newly discovered facts would be and also how come those newly discovered facts were not presented to the court at the time of the that that may be the case your honor but i think it would still require the appellant to explain why those newly discovered facts had not been presented to the court prior to the hearing on the opposition in their opposition to the motion to dismiss and in the motion for consideration there is nothing there for the court to provide relief on there is a declaration attached that says i am the attorney for the appellant and i make this declaration in support of the motion for reconsideration and absolutely nothing else in support of that it was entered into by stipulation of the parties trying to figure out why that doesn't show the consent of the parties in reaching the agreement the bearing on the law defendants were not a part of that settlement ordered my clients didn't even know the cab appellants or anyone else at that time so and we agree with the district court that a settlement order is not a contract so as far as the tortious interference go and we also believe the district court got it right there name or a telephone number was just cause confusion and disrupt the business of the yellow pages and so we'd ask that this court affirm the district court's order on the tortious interference claim as well as it relates to the claim your honour's that claim is just baseless these could tap marks do not rise to the level of a famous mark these are not marks that are like tiffany our polaroid our kodak our but wiser beer so we believe that the district court got it right on the dilution claim as well and properly dismiss those claims as well as it relates to the court's order on the motion for attorney's fees there was no abuse of discretion there let's talk about that i do have a lot of questions about that particular decision i guess how is this case exceptional  especially when did not pursue the claims against you or your client pass the motion to dismiss stage i mean isn't this just the type of action a party bringing claims and amending a complaint twice just typical of an action that shouldn't necessarily be deemed as exceptional for fees especially in light of the amount of fees here i would disagree with that your honor i think this is an exceptional case not only was there a complaint filed that implausibly alleged trademark claims but there were three first amended complaint filed and in those first amended complaint appellant real ledge claims that they had already been dismissed by the court with prejudice and not only did it religious these claims that were previously dismissed with prejudice by the court it also included three additional claims for which leads to a man was not granted on so there was several miss deadlines this motions oppositions to motions to dismiss there were leaves to him in that were groundless that were brought there were ex parte relief motions brought there were just several motions brought that the court found that were baseless and it calls prejudiced to the measure nonny defendants they had to repeatedly keep defending against these claims that this really were baseless and and based on that new guidance i don't think so your honor i think that this is still an exceptional case this is a very different case and again a lot of pleadings were brought that did not support the theories of the case and there were just groundless claims that were brought was here with me in court today after the law firm misuari law group was dismissed from the case and its counsel kept on going and took us through a trial on three very frivolous trademark infringement claims and i would just like to address a few points that were raised by by your honour's questions first the issue of the settlement order we said it page sixty six of our brief that the tub waived any challenge to the district court's analysis of the settlement order because it's not like the judge just ignored the settlement with her he analyze it and he did that at a we said all right we greet the courts and enter this order and then we well sign that but the order that goes into effect is a determination by a judge that it's an it's an injunction it's not you can't go to court and say hey you violated the injunction so pain from infringing plaintiff's marks and we didn't infringe we had a whole trial on that so before you go into the court and say the injunctions been violated give us contempt damages you have to you have to make sure under under  to know your your honour's very familiar with you have to know that seventeen years later you have valid marks pursue which they didn't have to know that my client used a supposed marson infringing matter which he didn't i mean one of the one of the supposed infringements is the fact that my client uses the words yellow pages for iranians in a sentence they've been pretending they're pretending now that's a trademark infringement yes i mean what you're saying is just never really provided any on whether the settlement order was a contract you're providing some of it now but i don't think the judge did other than what you just mentioned right there did well yes he did because it was raised in the context of a motion i'm sorry it was raised in the context of  that there were deficiencies in it that they didn't allege performance and what's a performance on a settlement order they didn't have a theory of performance they kept changing that they didn't have they didn't allege breach properly they didn't  damages and so actually that was all admitted in the opening brief to tom admitted in the open grief that they hadn't played played the elements of a breach of contract that the court had already told them months earlier in breach of contract well you can't try to change the syrian months before trial when we haven't had discovery of what the theory has we would have been prejudiced that's the analysis but can we i want to ask you about attorney's fees i have a number of questions for you says i understand it and here i am going to ask the same question i guess i asked him this one slaughter but it's more important i think for you was a cut tops counsel at most frivolous i mean how to cook tops council in terms of the actual finding we cited in our case in our brief two cases in a rape a oral which says that you don't need to use the words bad faith in order to sanction an attorney you can use words for  what the evidence shows that acro says you need to have evidence of recklessness that's the standard was it reckless they said they had a famous mark that but they did but it was only user the iranians in los angeles that's not famous under th not famous because it's not known to the general american consumer that's just frivolous and they knew then you would because the judge told them they did dismissed it once and they kept on pursuing the claim and the only real reason for it your honour's is because my client really can't afford to litigate that's the elephant in the room that the other claim that we want to trial on they said they had a claim that my client infringed all the telephone number or this registry design market we told the judge there is no evidence and they exhibit a list of my client evidence we went to trial we prepared for trial interviewing all these witnesses to know what you know what are they going to say when they show up about this this this mark it was just it was a bogus claim and then on the two generic phrases you know the settlement order again i go back to the judge's analysis was two hundred ninety two thousand against the tops council personally i'm not sure it's clear that the whole amount is against counsel at least from my reading of it how do we know what portion of the case it says if the entirety of the case was frivolous from the beginning if the court can award sanctions for the entirety of his he the judge explained in detail how every one of the claims but what it he never made a conclusion regarding that i mean it's not clear to me that maybe because you've lived it you think it is clear to you but from the papers from the ruling he goes through a lot of what happened  pointed out the standard of review here is abuse of discretion to the trial court abused his discretion holding not only could top but the lawyer who concocted these frivolous baseless claims and litigated them for two years to say you can't use yellow pages for your own use in a sentence because when you say that it's yellow pages running on to every iranian and from their own witness that was admitted it i mean he saw it minute he saw everything that in the record we're talking about he made counsel because you know again it's just more litigation that a small yellow davis company cannot afford it's more delay they didn't even address the right standard but i would say that the judge applied the higher standard the judges applied the bony standard  which is more rigid it's groundless vexatious unreasonably pursued he found all of these claims every single one groundless fixations and recently pursued based on his findings do these claims under the new standard stand out