dismiss looking at the appellate record particularly the allegations the complaint in the exhibits attached the complaint we see that the there are many additional elements to the trade dress of these sanctuary series candles besides the copyrighted stained glass more design but let me ask you this you're different you're different counsel them below correct i am right that the district court h preemption issue the court and in fact dismissed the trader's claim on preemption ok and maybe you weren't that you saying your side wasn't really that helpful on that but i'm noticing that indi one i think the court ultimately the only way the court can dismiss the trader's claim is the court said you got it here's another chance i think that preemption applies after the first complaint you have no chance the court then ultimately rules chance to amend on that but you never really did you just rested and so there isn't a complaint that alleges the facts of the quality control exception to the first sale doctrine there's just this affidavit that's out there but it's not really in any way admissible so did you well why didn't you be allowed to why should you be allowed to replay that when you sat on your hands and didn't do it down there well for one the basic allegations of the  repackaging of the of the mcconnell candles is in the complaint the operative complaint the second many complaints that's the basis for either the repackaging notice or the ultimately the quality control exception to the first sale or alternatives of a so even if the quality control is out there you would say the repackaging exception would say if you or i take it this is a trademark infringement reversed passing off claim that the evidence to support the trademark infringement claim if the case went back down could include as you are knows anything that is put forward as we're just at the motion to dismiss level right so that was what was planned i mean my sense of what the district court's looking at is he has a first amended complaint that identifies explicitly that the combinations that are supposed to represent the trade press claim the combinations or has so many words paragraph twenty one the features the unique combination of the following design elements and all it gets mentioned is the depiction of a saint or other religious figure with a bullet shaped border factor so i'm not considering them so he goes back to what's been played in the first amount of compliance as that's not enough why isn't that right well first of all because it's two reasons one of the  bring out in the second amount of complaint bring it specific and it sure can't be the name of a saint or a figure of a saint the only unique element turns out to be the bullet design that's unique for purposes of copyright that's not necessary for trade dress it's a comet's it has to be a combination of visual elements for purposes of trade dress you don't have to be something unique about that combination of elements if you look at your own brief and look at the picture of all those candles ok the other thing to  e your honor is that that same paragraph paragraph twenty one also says a representative sample of the label that's being alleged to have trade dress is attached as exhibit s and when you look at that it includes not just the front of that label but the entire label which has all the elements and shows the proportions and the entire thing so so under that if you if you and those exhibits obviously get incorporated into the complaint so even under that allegation the first minute complaint we are looking at the entire trade dress paragraph twenty one doesn't add additional elements as illustrated in exhibit e it is explicit in saying the following unique elements and that was three at all and it simply said i'm giving you leave to mend and and in fact the discussion about the repackaging alan which is a separate thing which we came up with the first hearing came up in an argument about trademark not about trade us in court said in its order you know it was puzzled by the argument that was done in opposition to true to the preemption argument and so the court was looking for more information on the trade dress and that's what locata supplied now and i'll just reports on description of that a somewhat different so tell me what the district court was doing in a way that's not consistent what the district court said  force against i'm sorry mercado has no trade just rights in force against india that is whether you look at the label itself which is which is preempted or whether you look at the glass cylindrical candle in the holder and the whole nine yards because all of that is in the public domain other than the label we always get down to the label so even if he remained there to decide whether the broader trade dress allegations finally the court when the court ruled on the preemption market that wrong of course not the court said well you didn't really flush that out in your brief you don't seem to use they never they never really appealed the the court s preemption argument in the june order it appealed that fictional preemption order in the sept ruling in the september order which was never made it never appealed it never said the judge was wrong in the june order to hold the label design preempted well i guess i'm not understanding that exactly the court made a number of rulings now we have a final dismissal trial order so we can review all of the court's or enters interim orders including its order on or determination on the first amended complaint regarding preemption camp way grass out so if we think that the district court was wrong on its preemption determination what's the effect of that so you know well first of all the court heard in at the ground for dismissing the traitress infringement in the first instance i don't believe mercado's appealing that if you look at their first issue on appeal they say whether there are broader allegations of trade dress which the court struck whether they're broader allegations should have been preempted they never state is an issue on appeal that the district court was wrong in june when it held it was preempted they only they only say that the judge is wrong to say the whole candle own configuration they're saying on the second and complaint preemption wasn't part of the it sticking to the additional preemption rulings which is an element of a preemption this that's what mercado argues but if you look at the actual september order there misconstruing it let's look at that if you look at the actual september order the court said and i quote the allegations of surplus sales by indio of mercado candles does not support a trade dress infringement claim well i hear what you're saying and i understand what you're reading but also he's saying look you can't you saying to play it if you can't bring in these additional elements because that's not what i grant you leave for and that's part of approach here so isn't any implicitly continuing to say and the elements that i do let you plead because they were in the first amended complaint i already told you in june weren't if they were enough then a different result would be reached at that stage so without repeating exactly what he said in june it seems to me that remains a part of the court's decision because otherwise if those pieces are sufficient and are preempted the claim was survive but i'm looking i'm also looking at the brief and it says the first issue on appeal is should copyright preemption bar mercado's trade dress claims when the visual and legal elements of those crimes are much broader than the copyright claim so how is that issue not before us i interpreted that as referring to the because if you read tech all but that's what the issues on appeal here relate to they open that they may open on that and they're opening briefs so to say that they're not claiming that it is well if you look at the context all they argue is that i'm just looking at the ok on appeal you want like you look at and then you don't respond to that well would you like me to go to get my briefs i believe that we did respond and say that they have no trade dress rights it's functional how did you respond in your brief to the preemption argument well that's ok yeah i mean i thought you suggest i would say the lower court didn't pass on the preemption issue which seemed wrong to me and then law i mean i can't i'll have to reference my brief but i believe that i argued that when you have just the label it's coextensive the the court dismissed the copyright case because found that there is no enforceable copyright and said that because the label is simply the copyright claim it is  correct and your and here we may have ships passing in the night your brief does say that the district court was correct in concluding that the plaintiffs claim was preempted but it explicitly defines that claim as being only what was stated in the first amended complaint based on your view of the district court's decision the second time saying i'm not thinking about the additional elements and all there is in the first amended complaint the ball window design and the picture of a saint in the name of the same and so you're talking about what the district court said in the first amount of complaint and elect not to address the additional factors if we let the additional factors come in i don't see how you've offered in opposition to that i think that i think that even if the court did decide that they did go i did  amount of complaint i don't see any discussion with regard to the additional elements that i just attempted it might have had in the second well i just think cases in the second then i talk about unpaid beginning on page twenty four that oh twenty two the district court never found the refined trade dress you know functional distinctive so if you don't have trade dress you don't even apply preemption even if we disagree with its preemption ruling we should we could affirm on a ground not addressed by the district court is your argument my argument is if you have no trade dress to enforce there's no preemption the court can never find the redefined trade dress to be valid trade just because it's functional and there's no secondary meaning it's not  report didn't make any of those findings right so you would be arguing to us to make that determination he said that correct that's correct  three quick things one of course all the orders of the court or before this court this missile order and compass is all of the court's orders second court the district court did in fact in its last order stick with my my and original ruling about preemption so that's where the court went and finally to the degree that this court does not believe that it's to know will review or its discretionary ability to review the second  complaint apply here we have also put an argument i believe a good argument that there was a use of discretion in this situation for the district court to strike some of the allegations from the second in a complaint given that it was the court that was puzzled by the traitorous allegations given that there was no rule sixteen order in place given that we were not adding mikado did not add any new claims or enlarge the complaint in that fashion like the one of the worry that the district court cited in the benton situation so i don't think that i think the court doesn't need to go then the court has the noble or discretionary authority the ability to look at the second a minute complaint but even if not we would maintain that there