morning may please the court my name is mark partridge and i represent jim putin and his related companies involved in the fishing tackle industry he is prior user who alleged in the complaint of the land of lakes mark for fishing tackle mr human in appeals from a summary judgment decision granted against his claim for trademark infringement under the lanham act the case went to trial in two thousand and fifteen on defendant's counter claim for dilution mr human in prevailed and no appeal was taken from the trial decision the only claim on appeal is a summary judgment award against his trademark claim the issue is  company land to lay us i would do it it would increase its sales yet even with think well it's not just dealing with some little some little fellow and upstate wisconsin sells  honor is his deposition explains in the deposition the entire deposition was put in the record at thirty five six but he explains that the situation is what he legend the complaint was one of reverse confusion where he was being think you know this is reputable big company i'm dealing with fine well with their wisconsin fishing tackle branch the confusion arose with people asking about him being involved with land of lakes whether they would complain he had the actual confusion that's in the record legis would you have slimmer answer my question yes or no sooner heard is business his business was hurt by investors who are also confused and would not invest he was on i don't understand what does it mean investor is confuse if the investor thinks he's investing in landa lakes and he feel more comfortable this is a big company rather invest in a big company that's a little as huge in place and northern wisconsin as mr human and explains in this deposition he found that investors where he needed money to build his business with wal mart would not says no land o'lakes is a new name for us for this northern part of wisconsin that's where i got my name from absolutely nothing to do with this other company now why doesn't that dispel the investors doubts in fact the record showed that it didn't well why not because the investors weren't satisfied with the answer they believe that there was a confusion about affiliation whether land of lakes with you they ask him whether he's connected to land the lake says no now it's very easy for these potential investors to find out whether it's true or not doesn't make any sense your position and his position well his position was that that you know in the early phony i don't see how he could be hurt by being confused with a much larger company which investors and customers and everyone would rather do business with he explains that in his testimony it was in the record it really is a disputed fact but it's a question on whether those investors were in to watch the investors worried they're worried that they'll that he's not affiliated with them but people will believe he is and that land of lakes will accuse him of infringement this is the problem that comes about with reverse hurt now no atlanta has so i'm fact if anyone says you know that there's a connection with the land to lay snails will say he'll show them land like sued me and friends and family he was looking for more because he had the opportunity to expand his sales dramatically at wal mart if he could get the funding to do it the conflict arose when land of lakes is promoting the land of lakes angler of the year award and that is creating confusion amongst customers confusion with his investors and he's not able to reap the investment money he needed to make that next step that's the the harm alleged and he testified about that his testimony in the case i think is very important the testimony that he provided explained the nature of the confusion under the standard of the statute of course the standard of the statute that was alleged in the complaint is eleven twenty five eleven twenty five a which deals with the likelihood of confusion as to sponsorship affiliation approval or also source but his focus in the complaint and through his claim is that there's confusion as to sponsorship or affiliation that's what he experience his testimony as a small businessman is the heart of the case he's lived this since problem arose at trial on dilution the judge found him to specifically be a credible witness so those facts are disputed by land of lakes but they're important  they are evidence directly on his shoe with the statutory claim that was made in the complaint the next point is what was argued on summary judgment response the land of lakes argued on summary judgment that they had knowledge to that that this kind of conduct a larger company moving in to a new industry occupied by a junior point in the brief where where in the arguments where the seine desist center on them sponsoring a fishing tournament it doesn't center on the merely sponsoring a fishing tournament nor does it center on them selling fishing tackle or using the land of lakes mark to sell fishing tackle the problem is in between where there is a likelihood of confusion as to sponsorship or affiliation why i don't understand the more is laid out in the declaration is them the north's one more yes they are did the land of lakes angler of the year award not just sponsoring the fishing tournament they ran fishing clinics at just because of the nature of the publication what what is it that you think is the real trademark crawl to you the very fact that you're saying we're entitled to recover because they advertise in  so hold your position up to ridicule so you need to be very precise about what it is you think is the serious trademark oh so what is it thank you your honor it's not merely that it is the combination of circumstances trademark infringement is built on the combination of circumstances this court has made it clear that you consider a variety of factors one of those factors is that they were publishing in similar serious argument you got a serious infringement oh this is the time to tell us and telling us that they advertised water in fishing magazines is not going to get to it you need to understand that yes i understand thank you they entered the fishing industry with the land of lakes trademark that well they are that is their legitimate name landa les that's their legitimate name in the but are not allowed to go into any business in which there's a company that has the name land the way they're not allowed to go into for example the fishing tackle no name the name of any other fishing tackle company can go into can go in to any aspect of the fish and industry now you say that it seems quite preposterous there's a qualification to that automobile ad and they were not an automobile it in the fish you may say yes we wouldn't contend that that was an infringement of his rights it's a combination of activities that included and he and mr janssen explains in this decorates declaration how their activities were related to fishing tackle and that's the factual issue here there's evidence in the record that their activities were related to fishing tackle and i think they sold fishing tackle that they engaged in activities in the fishing industry that those activities cause the likelihood of confusion capitalism because because no other company can and can say anything about fish we don't go that far your honor and that's not what the circumstances are here there's much more in the way of activities ten years of use what if they had just had the angler of the year award would be an infringement of humans land of lakes angler of the year award could be a problem yeah i think it would well imagine rich hotel a longstanding of ritz there's ritz camera more recent if hotels moves into the and has a rich photographer of the year award it would reason it could reasonably concluded that there was you couldn't tell whether it was ritz cameras award or the hotel's award there could reasonably be confused now when there is no land couldn't because look at words like ritz and so on there use everywhere but all sorts of different companies know in dreams they coexist in different fields your honor but when they move into the same field there can be a likelihood of confusion mistake or deception and that's what's claims here on the correct  did and toward promising it on what others did directly to sell fishing tackle he did that purposefully to avoid problems with his claim he did it unmistakably ten times in his brief the district court recognized what he did and when he tried to switch back after losing summary judgment in a motion to reconsider the district court denied the motion to reconsider saying it was too late the correctness of that waiver ruling is sufficient to dispose of this entire appeal but the fact that mr hu going to and neither listed the order on the motion to reconsider is notice of appeal or put it in appendix or even addressed in his opening brief is another reason to do it so let me just i must say basis is based on the fact that it is notice of appeal he specifically identified the summary judgment order but not the motion to reconsider but your honor put that aside because the bulk of our position is that the district court was entirely correct in finding the shifted away from this theory on purpose let me tell you why land o'lakes had moved for summary judgment against all of mr who's in its claims on both priority on latches in addition landel it said move for summary judgment in its favor on dilution because it has a famous mark and had it since the one nine hundred twenty s and he had come into that in order to mitigate his risk on those he moved to secondary liability he said you know put aside i'm not going to argue that land o'lakes can be liable for sponsoring tournaments  what i'm going to argue is that this person this angler of the year in this man's bait company specifically sold fishing tackle that helped him in two ways number one it shifted the time because that he said he it didn't happen until two thousand  and so instead of latches starting in two thousand and priority starting in two thousand which is when it would have because you keep became early he got himself four years on the period the other thing he did is to avoid the dilution plane coming back at him if he could step away from this broader argument and step away from arguing that fishing tackle is boring with butter that walks him right into a dilution claim and by focusing specifically on tackle he could make it narrower so this isn't tiredly  he did it ten times in his brief to the district court his introduction said it was introduction said it was defendant's expanded use by allowing others to use the mark to sell fishing tackle that was the basis of his claim his conclusion liability all the way well your honor in maybe i'm just confusing the terminology you know you could either be an inducement clan that lana lakes induce these people or it could be of a curious claim that they authorized it you know there's nothing vicarious the claim is as i understand it land of lakes turned to these other people and said you are free to use this mark right it's a license to use the market and so you sue the license store who gave the license if it's impermissible to do that you're a perfectly normal theory of primary life ok your honor i agree that that was the theory the district court's holding on that theory was that there was no evidence either that land o'lakes had granted the authorisation none whatsoever and of course it's true because the claimed user was man's bait company and the only evidence of it was actually a press release that said the man's fate was rolling out this new lure that had been designed by some of the world's best fishermen and it listed five of them in the fourth of  only two ways yes or not and then you can explain yes a land a lake certainly denies that it allowed man's bait to use its market anyway so that that's the answer directly to your question your hon the context of it is that the only use of mystery you've identified is a press article saying that man's bait was rolling out a new line of lures designed by some of the world's best fisherman and a list of five of them and the fourth of the five was dan morehouse who it said won the land lakes angler of the year award in two thousand and three that is the entirety of the evidence on that claim the district court found that that was insufficient it's absolutely right on that claim and that's that's an entirely sufficient basis to  the other bases that we raise those alternative bases that this court can address if it wants to but it doesn't need to as latches because mr hu going in found out of course that land o'lakes was sponsoring fishing tournaments in two thousand he didn't say anything to land o'lakes until he filed the suit in two thousand and eleven that's eleven year period the underlying comparable statute of limitations period in illinois law which applies here because that's for mr putin and lives is three years  well let's see it's i believe it's in section eleven twenty five you're on i didn't really read the the m g m case i know it supposedly to me that nobody talked about the trial well your honor i think it's because there's a footnote  patrol up that stink wishes the lanham act on this i didn't really read it before this argument but i believe that's why i didn't come up here there's express statutory authority in the lanham act as opposed to copyright for equitable defenses applying and applying not just to equitable really like injunctions but damages as well so that's that's the basis for that argument you know as to the element assuming that i'm right on that the assuming the latches applies the elements are met here it's unreasonable delay plus plus prejudice case and others when you're this far beyond the period that's all it takes now as i said mr hu going to and below switch this other three so he could shorten the period he also argued that he was relying on settlement negotiations but because he had never ever accused land o'lakes of infringement never asked land o'lakes to stop there were no settlement negotiations that's latches let me move finally to priority here and  is an odd flavor of priority because this is reverse confusion here where there's a dominant senior user in the claims that it comes in the priority here that's relevant is when land o'lakes rolled out its nationwide sponsorship which was  hundred ninety eight under this court's precedent a nationwide sponsorship like that a sufficient to gain priority now wendell it's never use this mark to sell fishing tackle so it's not the ordinary priority but the idea that he has is that he can buy land o'lakes from advertising butter and fishing the relevant bit to consider is did land o'lakes come in and do that before he was ever involved in the answer to that is yes because before january first one thousand nine hundred eight the only use that mr to get in had made of this mark is a single sale of one hundred forty dollars in the local bait shop called the middle bucket and is single sale on a handwritten receipt there is not enough to get priority in any way and so even if we were that land o'lakes was liable because it authorized others to use the mark to sell fishing tackle is yet one piece of evidence it was this news article and so that's the sole evidence and what he said is the infringing uses man's bait rolling out a new line of fishing lures that it said had been helped design by the world's best fisherman and listed five of them the fourth on that list was the guy who won the land o'lakes that is the sole evidence he has for this theory of infringement the other four had no connection to know the other four had one other fishing awards but not in that not the land o'lakes or so the idea of that listing that in there is just proof of infringement by land o'lakes of his mark is is insufficient as a matter of law that's  your honors first of all the issue of priority that's an intensely factual question it was argued on summary judgment before the trademark trial and appeal board where land of lakes brought a claim for likelihood of confusion trademark trial and appeal board denied their motion for summary judgment on that issue it's an intensely factual issue that should go to trial the latches issue is also an intensely factual issue that should go to trial the judge in this case dealt with the latches claim where against land of lakes and found extensive factual issues on latches and so we went to trial a match on that affirmative defense the same issues apply here that there are factual disputes that would need to be settled at trial as far as taking the decision and narrowing it down to simply was the issue whether we land lakes allowed persons to use the land of lakes mark on tackle that is not human it's clean his claim was broader than that he explained it in his testimony and when he  but there were four areas of key facts that were in dispute the question of whether or not defendant was in the fishing industry in a way that would cause a likelihood of confusion as to sponsorship whether they allowed the mark to be used in connection with fishing tackle there's testimony from human in that supports that and there's the situation with man today you're going to argue that he's lost sales of his to yes he argues that he's lost business opportunities in the ability to expand with largely wanted to sell more through wal mart and wal mart said what wal mart offered greater expansion opportunities but he needed resources to have the inventory to meet those demands which he was unable to get behind vespers back down the need to attract resources be affected by land the way it was affected by land of lakes activities in the fishing industry which created confusion in a concern about whether