men and i would like to reserve five minutes of my time for a bottle which will be presented by mr webster this court should reserve reverse the trial court summary judgment because there are disputed issues of material each of the five claims brought by the b s and made the subject of this appeal false advertising trade press infringement misappropriation of trade secrets breach of the do surely duty and civil the trial court here selected and analyzed only one element from each of the causes of action and determined that there wasn't enough evidence or the evidence was not strong enough to overcome summary  because the evidence presented by the b s was sufficient to clear the summary judgment hurdle although a jury of course may reject such evidence or more favorably regarded one witness's testimony over another witness's testimony the trial court on summary judgment should not have made such a terminations and should not have weighed the conflicting evidence presented either clarify a point which is this one hundred percent herbal did not appear to someone advertisement or did it appear on other  newspaper but multiple times in that newspaper which i would represent to you as it's represented in the record is the number one newspaper publication in the united states for the vietnamese reading to munity but also on each of the packages themselves which sit side by side with j and seven best which is the supplement the joint muscle pain supplement that competes with arthur of seven arthur seven is of course the product have an expert who analyzed that and figured out how much transferred or what sales were lost no your honor not at the summary judgment stage what was presented however to the trial court and chairman of the v b s corporations those declarations are pretty sparse though they basically say i'm the c e o i believe this would cause harm and i think he's referring to not just one hundred percent herbal but a number of other allegedly advertisements or statements which i think are no longer here with us on appeal correct your honor we're right now we focused our appeal on the one hundred percent natural herbal misrepresentation or falsity  and i i do think actually the declarations of mr wynn are important while they might not have risen to the level of evidence and the strength of evidence that the district court may have preferred that is exactly the kind of error that this court held in cliques billiards is inappropriate to consider a landmark cases do you concede you had to show the fact of injury to prevail on your lanham act claim the fact of injury  yes now in terms of damages no you're wrong well there's a difference between injury has an element of the claim and an essential element to prevail on the claim and then quantifying the damages separate because if you concede that you had to make a showing on the st one in history your position you didn't need to do that no what we did need to show injury your honor however the remedies available on their land who act are not just simply really so that issue appears forfeited your honor i would i based it in your reply but i didn't see it in the in the opening brief the opening brief talked about the fact of injury hung its decision on but when the argument was made in the answering brief that you that's all you can get is damages or the suggestion that that's all the limitation is at that point that opened the door for us to say no as we argued in the trial court this court and the district court will the district court has broad discretion to fashion a remedy under the statute the land him act so i don't i don't believe that it would it was it was forfeit it was a direct what he says is that the false claims cause consumers to believe that their product is superior to ours and that causes consumers to purchase their product over ours now that is that is a diverted profits  or measurement and that is one of the theories but the principle theory on which this particular claim with base but the trial court erred in not considering that and in fact said because you were in the red for that time period hence there is no recovery available under the this land him act claim seem that if this is fission you could get past summary judgment on this element almost every time because at  a company executive or c e o could put together an affidavit that says in good faith i believe that i believe that their advertisements are harming my business but if that if that's sufficient i think a lot of these cases are go summary judgment are just favored in length and that cases because the ultimate issue is so inherently factual and your honor i think is absolutely right and that warning that principled warning is illustrated in this case although i don't read  that decision to suggest that summary judgment is never appropriate and the issue i have is we have here a single line in a single declaration and that and doesn't just refer to this one hundred percent herbal point refers to a lot of other statements in your argu that standing alone is sufficient and the point i'm trying to press is if that if that is sufficient then i think these will these will always be allowed to go forward and i don't think that's our law your honor respectively respectfully i don't i don't view it that way well i agree with you that certainly the gateway is opened much further in these in these types of cases but i wouldn't say that in every case it gets past summary judgment i think the facts presented in this case are are fairly unique i mean if you look at click the clicks billiards and you look at even the flood records case recognizing it's our summary judgment case that case but clicks billiards was there a court listed number of cases even outside the circuit because the trial court focused on this particular element now how did the trial court analyze all the other elements to your honor we might be having a different conversation here today recognizing that but the prop why the district court concluding that you you're making a claim based on looking feel and you didn't even give him exemplars of what the show was you just gave him a few still and a list of features and look and feel you kind of need to see the look and feel so he see this is just a textbook complete failure of proof why was that wrong you had to because again it goes to the strength of the evidence what the judge was but that's carney was saying there was you know if we have better evidence why aren't you presenting that but assessing the strength of the evidence and if there is better because i can tell you what i could what the record might or might say about that but i did not represent these clients and underlying case but i can tell you my review of the record says that there is no such representation that there was a complete discovery closed discovery but that by this time was closed i believe and i'll check the record on that but i think that's exactly right trial you would not have had an opportunity then to provide a d v d with the side by side comparisons of the two shows in fact we would have been able to and your honor i think your question does speak to another important point which is to answer a question yes we would have and your honor i concede that it would have been stronger evidence and i can see that in the brief it would have been strong evidence i don't explanation for why that wasn't presented however just as an clicks billiards where there was evidence that was stronger i see iran has a question you know you may want to save time for revoking did i just run ten limits all right thank you very much their complaint for me repeatedly permitted years after we're past the pleading stage of the case to amend their complying allow them to mend their complaint after the close of discovery and and and still when they get to  the rd summary judgment even though they have seen our entire case all of our arguments into earlier summary judgments when they get to the rd summary judgment judge carney goes and says there is a complete failure of proof and so there was not a reasonable effort to maintain the trade secrecy around them and that was the basis for granting summary judgment can you speak to that issue there there was they had agreements with the vendors the vendors or the actually jewelry stores that come in and appear on the t v show and so these vendors present their their jewelry and their and a host of the show goes and that is assist the jewel and making the best case for why their jewelry should be purchased in the auction proceeds and so they have a contract with these vendors each one of those contracts to not have any confidentiality about the customer  now what is the customer list the customer list to simply the people who get the winning bid and so then the jeweler it's not the show that sends the jewelry to the to the to the person who purchased it it's the jeweler and so the jeweler arranges for either the person to come into the jewelry store because the shows show interest in orange county or your friends on the other side make the point that you know we gave these lists to the vendors so that we could conduct our business so that the customers could receive the jewelry they paid for and we didn't in the process of operating this basic business model thereby lose our trade secret protection what's your answer to that without it that is what happens you trade secrets are something you must maintain a secret if it's necessary for your business model to disclose a particular piece for information to rd parties then then there is not strange that you just  to take reasonable measures now not the absolute best ironclad belt and suspenders maybe would have been better to put in the contracts but if they know that their vendors by course of performance are ones whom they trust and have confidence and will treat this appropriately why isn't that a reasonable measure that's not a that's not a reasonable measure because there's nothing in this r be any evidence that any of their vendors ever disclosed coast rose ever used them in appropriately we there's no evidence they use them in any way at all other than to provide the jewelry i don't know right so that it looked like it was a successful measure for maintaining secrecy but the problem with that argument is that there's no evidence in the rocker that that in fact is the case that they had some sort of confidential relationship with these vendors there was only one declaration from one vendor and that test declaration was excluded based on hearsay and they don't appeal that evidentiary ruling so that there's absolutely no evidence as the c e o testified as well that there were oral sort of course of dealing with the vendors where they understood that the vendors were not to simply disclose to the outside world the identity of the complaint that these were written confidentiality agreements they never produced a single one of them they net this whole idea that they're somehow at the last minute they're going to introduce a world agreement these are all agreements violate the statute of frauds anyways you couldn't it would have been forcibly green and so so suddenly when they could not produce a this is this is part of judge carnes point that there was a complete failure of evidence there was not a single such agreement yet that was the basis for the complaint even the rd amended complaint only the t v host here did have an agreement that that said she she was not to disclose customer lists and the allegation here is that she did so well there's there was no evidence that's that's oh ah so it's carney pointed out there's zero evidence that she disclosed anything she was a person within the  vietnamese she's a celebrity in the vietnamese community she's a multiple beauty queen winner and singer in the vietnamese community she has her own following she has this huge lives the only thing i think identif was like one or two names that overlap on her phone that overlapped with their lives was she has this huge following anyways of course and in the vietnamese community in orange county which is quite large there's going to be some overlap between her lips they never showed once that those couple of names that matched up were somehow taken from their lips they claim the whole list was copied yet they could only find a couple of names on a cell phone that matched up so once again that's the kind of complete failure of evidence if you're going to make a case with that someone is taking your customer list and then finally evidence to show that they are in possession of that  list their contention was there was a there was a space of two minutes when she was supposedly alone and this is getting into the why i didn't understand it the ruling below to be based on this i thought at least on this issue of the customer it was based on holding they had not reasonably protected those lists because they had given them to vendors i think to some other reason why this claim fails but that was at least according to this record that was the one reason he gave i believe that he does does discuss i thought he did discuss this issue but the point being extended beyond the minimum seven hours it was it was it was extensive discovery in this case and that's why the judge was so disappointed in their being complete failure proof so regardless of where they go with this if they go in that direction complete failure proof they don't have additional evidence if they go to the video what fifty there was there there what there were they didn't copy they didn't keep copies of all of their shows they're there that have been if they weren't aware of that fundamental concept in trade dress law before the th circuit let them know that they need to take all these functional moments and show how the overall look and feel of those functional elements at anything this was the time to present the evidence you don't you don't attack a summary judgment by going in presenting weak evidence and then when it turns out that someone goes says no reasonable jury could conclude based upon a couple of screen shots from a t v show what the look and feel of the whole show is you then don't go and say well you still have to deny the summary judgment because the trial i may have been able to have better evidence that the time to oppose with advertising with the herbal the question of the herbal it is very important to understand that that the plaintiffs only sell in the vietnamese community  primarily only an orange county theirselves over a six year period amounted to about two thousand units per year for time at seventy about seventy three thousand dollars in sales per year mr when admits he he doesn't sell in anything other than the means stores and so he the when you're dealing with my client  son and soul and gnc sold and in drug stores all over america so it also sold through telemarketers so you have this huge exposure across the entire united states and so there are or then there's the issue of harm the only relevant that advertising that for purposes of them claiming some kind of harm was in the vietnamese community in orange county where that newspaper ad appeared because any other advertising in any other market is irrelevant to their sales because they're not in any other market they're only in the vietnamese market and so then that's why it became so critical for them to establish what the market was if they're if they're saying it's only to go and that that's why our brief focuses on this whole issue is it possible to define a market according to the ethnicity of the purchasers and the in the in this court you know cited th circuit case law says no it's a it's about it's about the  sellers that define it or the products that are in the market but not the purchasers because you can't that there was no evidence whatsoever that these that any vietnamese person looked at that a had any negative impact from it zero and so so then you see that that goes so this whole concept that maybe there was other advertising and ma mass distributed the united states that made some sort of verbal claim is the only way that would ever come up in that and any contacts with respect to that was would be with respect to some sort of injunctive relief and they will waive that issue that was the court's absolute correct that issue wasn't raised before that wasn't their point there were they want money they want they want to cover their profits and they've made a they've made an argument that  use it's really critical to focus on with respect to damages they've made they've in order for them to get the damages they need to have show that there's comparative advertising comparative error advertising cases are typically where on my client's box if i'm being sued there's the name of the competing product the name of our product and there's a comparison chart and so that and then there's a direct comparison going and saying in the vietnamese market there's only two in our major competitor does this then you can say and for it but there's a direct comparison there's no direct comparison on this box their argument and their reply brief is the league is legal argument  ever seen on this their argument is because the two products sit on the shelf next to each other in the vietnamese market that makes a comparative advertising case that would be that th circuit law the comparative advertising was a comparative advertising case and a th circuit law suddenly becomes one and so that can't that is not the test and that particular slippery so slow the court docket down thank more yours i have brief time i'm going to quickly start with false advertising claim the comparative advertising issue what's important to keep in mind here is that the case law on comparative advertising is such that if it is a comparative advertising claim there is a presumption of injury we don't need a presumption of injury to survive summary judgment we need traffic school i think that well i think that we are within that presumption but i i mean i'm willing to to hitch my wagon to the fact that we don't need to comparative advertising with this doesn't need to be a comparative advertising case for us to survive summary judgment on the false advertising claim and the reason for that is that we do we have more than just a single line in the declaration in terms of the there being injury the fact of them being on the shelf matters and side by side matters for a big reason and it's not just as to it being a comparative advertising case on the label it has this false representation these are these are coming these are comparable products that they do doing the same thing they're being sold for the same purpose and the they are to the same or marketed people and the enemies community there on the shelves in vietnamese markets invidious language is telling them this product is one hundred percent natural herbal now there's other evidence that shows that in this community that matters because as a demographic not not not everyone but as a demographic vegetarianism is highly valued these products are not purely vegetarian that makes that that's what makes that statement false by having this side by side and inf can be made it doesn't need to be a presumption but an inference can be made that sales are being diverted because this community that is being directly marketed to cares about that issue appears about that statement given the  all those together raise an inference we don't need a presumption of reason influence that we we have been injured ok all right thank you can't think your case just argued abuse admitted