brief you say that is quote zooms current website ellipsis causes instant confusion because any consumer would be led to believe that stuff is associated with do breach consisted of maintaining the zoom lens on i believe that it was also mentioned in the camera no deposition transcript not what i'm talking about your summary judgment opposition if you thought the breach was that maintaining the zoom website you needed to say that the district court i have read your opposition does not mention  from zoom in email to the website operator telling them to take it now even before the settlement agreement what is it that they did that was a breach what they did was they continued to have the website operational that had the what he means imagines of it was operated by a rd party right i believe the idea village was operating a website in which  settlement agreement paragraph three that simply read write its assumed responsibility for so that the website was not operated by a rd party body idea village yeah i believe idea village took responsibility was responsible for maintaining that website and zoom t v products under paragraph three of the settlement agreement was responsible for anything omissions and otherwise and actions of idea village code what about this e mail that told them to take down the website now doesn't to our idea village it was to a rd party what is that what do we get out of that  but the record evidence which were attached to the briefs were these screenshots where there was no  ok so what what happened here you reach a settlement agreement presumably everyone is satisfied and correct and then a few months later it was taken down ok so still a few months after the settlement agreement let's assume for the sake of argument that the buy stuff website still had the matters on it correct and they took it down what is the complaint or you didn't seek any right you did digital allege any harm in the prayer for relief via there was a request for contractual damages for the attorney fees which argued my brief which is a form of compensatory damages prove that they sold any product after the settlement agreement correct some of them the damage is d that paragraph six of the settlement agreement that my client bargained for was immediately ceasing upon signing that july nd two thousand and sixteen to this to this lawsuit was that the market was hit with a number of counterfeit products that my client believed emanated from the  you mean that it was promoting that both websites were exemplary in that regard by stuff as well i mean it was advertising this is not what i think but judge wallace referring to was their theory as we would provide services to people ever ties or services the xoom website had this reference to your product on it as an example of the kinds of services that we provide people correct right and i'm suggesting to you that we that you can't bring it up if you don't mention it in the summary judgment opposition was attached as the exact exhibit sympathy to them and leafing which had the page plus the record deposition transcript which mentioned the zoom website here seeger in other courts to novo review the court has to accept all of bad habit ends and i agree that website was not mentioned in the briefing but it was part of the record exhibits to that briefing in the court didn't have all argument below either and so what might might my point was is that i believe it was it was attached to the complaint was attached the screen shots were attached one of the screen shots was from the zoom products to the website the camerino deposition transcript which is a corporate rep assume it made it that it's his website he continues to use  you gotta argue something in your opposition to the summary judgment motion and you didn't so one to accept that so what is left if that if that is our conclusion of what is under the paragraph six to me if the court has to give effect to all words in the contract immediately cease means just that immediately not tomorrow not six months after the fact they agreed to immediately cease website activities and at the very least  allege if you so if you didn't allege any harm i mean so they took it down once we agree they took the done several months later so the best you have is the complaint that they were supposed to take it down immediately and they only took and they waited three months and what and what and therefore you are entitled to attorney's fees for having brought the case yes you are because that's what they bargained to do under the settlement agreement correct wh wouldn't you interpret the settlement agreement as saying we're going to stop ever ties and stuff for sale and they were no longer advertising for sale because they were trying to sell out but intent in their actions is irrelevant to a breach of contract action and that of the contract means of the cut of the kind of the content of the purpose of the contract is to stop them from selling the product that accomplish that purpose you agree with that and if they're if you read the term ever tossing in the contract referring to everett izing for purposes of selling the product they weren't doing that but they work because those screenshots continued to exist after that supposing they had taken those websites down the next day with better probably so i would say that's within the realm of immediately upon the in the norms of signing a settlement agreement and taking an action created i'm sorry today i think if we got into issues of splitting hairs of days or hours following the settlement agreement we would get into the customs but i would imagine one or two days after would have continued under the guise of immediately cease but months after that well beyond immediately ceasing otherwise the court is not giving effect to immediately ceasing all website activities resume agreed to sue mediately cease website activities whether in what activities where i'm sorry what activities were happening the website itself continued to exist in my client also had there was an interactive by hours may please the court just last been on behalf of the police as your hours of noted what we're dealing with here is that we have a situation where what's the significance of this e mail and the significance of the e mail your own where where did we find website i don't know the question and the answer that question your honor i know that was who we requested had been taken down and furthermore as has been noted by the court many times over during this case during a quick wallop we've with claims council pounds council is that the purpose of the settlement agreement was to prevent that idea village and zoom from selling the product and there is no question has been ever any question about the fact that zoom an idea village haven't had any product since after the settlement agreement took place without any inventory to sell they couldn't make any sales and so without any sales you can't have any damages and the district court seized on this plain and simple fact and stated was that even if we you want to talk about sensual words in this agreement saying you're advertising and promoting music these these products you still wouldn't be able to get through the final hurdle which was you have to prove the causation of some kind of damages the record at the district court was totally bereft of any of that record of any of that what if that the date of this e mail is was operating or lease was in control of shutting out the website and for idea village so it took them two years to shut it down well nobody had any expectation that it wasn't going to happen and indeed your honour's we didn't know that wasn't going to happen it was and it was an oversight and certainly  the state but it doesn't mean that in of itself that that was the damage that cause any kind of damages to plaintiff and in fact the west as whether the settlement agreements satisfied by your making or idea village they view this request to shut it down when the rd party did apparently act on that request isn't that the issue it certainly it certainly may be but that's not the issue that's before the court well i think it is one issues that's before whether there was a breach of the agreement at all sure in the in the agreement itself is related to the sales of that product that was the intent of the parties when they negotiated that agreement which was to say listen we're giving you all of your product back you no longer want to do business with us you know walker want to sell  and that issue was soundly defeated at the dish record recognize that that was not part of the settlement agreement requirement that we were only require that the police were only required to put mr hanson in town to act with the manufacture of those molds again no evidence that that was not that that was not done or that we breached settlement agreement in that fashion there's well so that issue is a not appeals have been argued by palin on appeal and that is precisely one of the reasons as you've been mentioning your honor that we have a very difficult time with this because the record as it stands at the district court was very clear that there were no evidence of sales no evidence of inventory no evidence of damages as you have the breach of contract and up and or the settlement again or the trademark infringement action and now we have on appeal is appellants attempt to upset the roles of the courts in trying to give appellants a nd shot at what should have been obvious opportunity at the  we're addressing arguments now for the very st time a very non of them i'm just going to try to understand that they certainly raised with the by stumps website they said you did take it down it's probably as you were required to by the agreement and we wanted to say that the existence of the buy stuff website beyond the date of the settlement agreement regardless of whether or not there were any activities going on in there was no question that we couldn't buy anything you could buy a product of appellants from the site even if it was there to be seen that the mere sight of that product or that website being live was in some way causing damages to the plaintiff which is an essential element of the preacher contract action that he brought against product well might go to your website and try to buy a and b and i able to have them aside not to buy it because in that closed it was generally alleged your honor and that's obviously i think even the complaint states that you know they they expected their discovery to be able to go out into identified you know other people in the public that were trying to purchase mr hansen's product and were unable to tell st a couple of things on the point one that these parties are not in competition with one another idea village and zoom are not selling a competing product right the product is mr hansen's and all zoom an idea of those were doing were providing him with a platform to sell his products the nd point of that is that they had over a year of discovery opt to obtain an opportunity to identify some other consumer other than mr hanson himself had gone to one of these websites and that actually in fact purchased the product from us and received a product that was then either of legitimate opportunity for over a year to go up and to talk to other people who potentially may have gone to the site who may have tried to purchase this product thought they were purchasing products and then purchased product b that that is of itself is not sufficient t about that when you're out here and i miss your point the point is that without going specifically to if you are if you're a consumer of it the way that you're going to find this product is not by going directly to the xoom product website as they and there's not been any any testimony but anybody other than mr hanson himself saying that i went to these web sites and there were leading to a dead link and it's going to frustrate the consumer the likelihood of confusion alan and that they're required to prove in order to sustain the burden for just summary judgment indicates that they've got to say that the public will leaves but there's some other person out there that believes that the product is being offered for sale by us and it's actually theirs it's not really even a true trademark claim in the sense because we're not competing against a product we're not true we're not offering our own products for sale we had no product of mr hanson sell any longer and so with that the district court was correct in recognizing that you can't have a breach of the contract if you didn't have permits to sell it that was the purpose of the dream it and that is it seems to me that that your claim was that when mr hanson got into the web all but the general consumer is not going to just land is not going to be looking for a stuffs burger slighter stuff slot stuffs products and accidentally you know search through google and find this but there's there's literally dozens of other links that are going to lead to a sites that are going to provide them with a product that's just not true we're going with this because the the settlement agreement requires you take down the website that's correct so your is your is web site activities and arad retirement only meal will mean doesn't have an independent meaning it just is tied to the sales that's correct that's the that's the plain ordinary meaning of those words is what you're saying ever ties meant for activities that it's advertising or timothy's for the purposes of making a sale that is that's why it's underneath the agreement the heading sales and inventory because the real crux of the agreement paid him for the market the product that was in the marketplace and that was that's the settlement agreement here he wanted us to stop selling his products now what he's trying to do is trying to do for summary judgment  appeal is try to inject new alternative meanings when none of that argument was ever made any point in time in the district court and even if that was the plain ordinary meaning of those words would all be connected with the qualifier that they're for sales there's never been any dispute that the police couldn't have sold anything because they didn't have anything to sell the way if you look at this just look at that sentence it says cease all sales advertising and promotion of stop so you're saying advertising and promotion of the products including any website activities and or advertisement only exists if they're also for sale that's the purpose that's the purpose of the so it's it's we're we are no longer going to put his products on the market for sale by either through advertising or through promotion and once again your honor this is this is all of this is the brand new and novel arguments to a pelleas at a stage where it should have been made you know after having the website up apparently after the period of time and settlement agreement the screenshots beginning in september you know you're waiting nearly five months before you file a lawsuit not an e mail not a text message not a phone call that a demand letter to a probably saying hey by the way your website is still alive and so what would have happened  if it would shut it down immediately or and this entire litigation would probably would have been resolved point so when did you actually shut it down the date the lawsuit was filed i believe it was shut down some of some point in time subsequent to that what happened at some point in time talked about earlier was a year before two years before any of this happened it was the year before the settlement that's correct so that notwithstanding that if even if it was up and even if we were delayed in taking it down it still doesn't indicate that there was any kind of breach of the agreement and or that cause mr hanssen any kind of harm and the district court was very clear on this that that was totally unsubstantiated by the record thank you thank you in our in our briefing going to the infringement issue the u s structures case continue trademark use by one whose trademark plaisance has been cancelled satisfies the likelihood of product that was visible and advertised and promoted d for sale at least on the buy stuffs screen shots that again zoom concedes it had a  requirement to remove immediately upon signing of the settlement agreement whether a rd party website administrator delayed is irrelevant to the language of the settlement contract that was zoom's responsibility to do it did not do it and i understand my client did not argue the concept of nominal damages to the district court but to our position on appeal that as under the umbrella of compensatory damages which my client did plead the concept of nominal damages is a legal concept to recognize the sanctity of the breach did your client act immediately when he went on line and found u immediately not my client it was there they thought they were put on notice upon signing that settlement agreement my client's not i'd like her i guess what we're trying to expressing some confusion about is why is this he wanted to sever all ties with zoom in idea dylan i don't want my product associated with these companies any longer that was my intent the fact that he was also trying to set up his own distribution his product and the fact that they continue to at least advertise for mention his product on their websites which led to the dead links frustrated him and caused him i'm my my my the settlement agreement says what it says your honor and my client you know small time inventor invented this product i got a legitimate patent on it and it is the out there still using it to this day the zune t v provides and i understand that it could have been crystallized better at the lower court but it does exist in mr cameron admitted it existed and that is in the record actually just checked last night the website still exists that's the frustration frustrating aspect of this case the settlement agreement was designed to put an end to it i'm not sever zero and that's why side of the mountain math decisions and the other decisions in my briefing would occur when it comes to settlement agreements and website activities which are construed broadly not to be dissect