think your honor this case is as you know involves a trademark infringement issue and a cancellation of the mark based on a summary judgment motion in the district court and we are for you based upon that summary judgment standard that it is only proper to grant that where the record is viewed in the light most favorable to the nonmoving party and it must be german straighted that there is no genuine issue of material fact we believe that there are substantial issues of material fact peppered throughout the record before you and we'd like to start with the primary issue of whether create a good use of its mark was lawful and entitled to trademark protection in this case  boxes of cereals that were properly branded compared to this well in the case of general mills as of this case the actual violation wasn't one that affected the consumers in any negative way and there is no evidence whatsoever in the record that has been presented by use donna or its counsel that proves otherwise at the time that the hydro in the a living alone was released and marketed which was prior new product in a new industry and they were doing the only thing that they knew how to word went to two different labs their test was out there it wasn't an intentional violation by any means and it wasn't something that you i believe that it was absolutely good faith and it wasn't knowingly done and that's why it was constantly retested whenever there was a question or issue that was raised i think this is very similar to a case where you may have software that's developed by microcell for microsoft that's commonly being updated and tweaked and the testing may not be the same as it was in one integration came out and it is going to change over time which was the case here we started with a very new product that over time more and more was learned and developed and that testing would change over time which it did and there's testimony in the record from dr craig the president of create reading that makes it very clear that testing is still an unknown quantity today you cannot guarantee any levels of testing because it varies from laboratory to laboratories so even though the results did change over time that's to be expected and they believed that there was beneficial use of the product it was based on the mediterranean diet and that this sort of product like benefits from olives in olive oil well in german alcohol not oil we've made it even though there was a mistake in literally when the application was submitted in two thousand and one about the understanding of what all of to show that it's not there but a living all as spell called would not lead anyone who speaks german which was my second language to understand that that means all of oil i would understand that to mean all of alcohol and not associate that w oil at all which i think is clear from the statements of our expert witnesses that are part of the record you're going to you've used about half of your fifteen minutes and you said you want to divide your time with co counsel i just want to get one other believe that there are many factors in just a few here that would raise the tribal issue of the fact that this issue should go back to the federal court a separate throughout the record we believe that the strength of the market is is very clear but we believe that there is a likelihood of confusion between the names on live in all and all of all that would cause confusion in the general body of people that would purchase this type of product  a little speculation as to their intentions and why they needed to purchase our product prior to releasing their own there was also evidence in the records from the death liberation of steve bell like one of the attorneys a former attorneys from basically the same things and differ in the strength of their compositions so we feel that based on numerous of these sleep craft objectives that there is enough to cause confusion between the mark can you wesley can hear period for your son our health sciences the question that the district court had to decide and the first question for this court was whether create greed had proved that there were any lawful uses in commerce before you sign it was june two thousand and two priority date any versus even one they didn't do that this is not a case where there were some lawful uses prior to our priority date and then some unlawful uses before that date and then the question might be as in general mills are those violations de minimus are the material or do they so taint the other lawful uses that the plaintiff proponent of the mark cannot rely on them to supply the requirements of the statute this is the statute itself does not require lawful use correct it does not use the word lawful the courts have consistently layering on that's been done the trademark trial an appeals for clearly in the tenth circuit you have to establish lawful use that's correct but it's a question of first impression here why should we require lawfully as well the real issue there is  is that it's not a question of enforcing the f t c a talking about a product that has cocaine or heroin we're talking about a product with health food claims and that's out in the general have so consistently required lawful uses is because otherwise you get in the circumstance where people come up with all kinds of nonsense simply to establish priority much as they did from time to time before the intent to applications for bodies in the late one nine hundred eighty s and that was a certain before that what people would do is they would in effect send a product to themself or do something else to rushed the product into the stream of commerce to establish a v that was an insecticide case where people didn't rush to get a product out there and the result of that was that they failed to register the product with the department of agriculture people skip steps in order to get the product on the market as fast as possible the same circumstance the same policy reason applies now as well when you have intent to use applications because you still have to establish that you've used the product in commerce they just give you some time after you file their application to do that but again you had the same incentive to to rush to skip steps to do things that you might not otherwise do in order to establish that priority date people are rushing to get the name out there i think that's one public policy reason i could speculate about others but i think that's a good one let's assume that the panel is prepared to accept that notion and the use passed it not only be and commerce but lawfully and comers one of the elements some of the courts have talked about is whether the violation the misbranding whatever has to be material in the sense that it causes aware of any claims of health impairment none that i'm aware of again that's not the that i don't believe has been the standard and in fact the only court that has talked about kind of is a serious issue of consumer safety has the was the profumo course ever ties into which to to women and that was an unpublished case from i believe the district in illinois i like to use this product in the morning call coffee me in my it raises the hair on the back of my wife's head when i bring the container out because the container claims that it has no trans fats but when you read the label it turns out that it has no trans fats if you use one teaspoon but if you use a tablespoon or more it has serious trans fat implications because it contains palm oil and coconut extract and that sort of thing i don't feel misled the product is widely sold isn't  good example of a product that may be mislabeled that is not fooling anyone or causing serious concerns i'm not aware of any regulation that that label violates in fact i would i'm guessing but i think it's an awfully good guess that they have complied very carefully with the f d a has rules and regulations on how you label those things you can see the rules are remarkably specific about what you can say and what you can't say and those policy decisions about what mean that somebody can come back and say and follow a lawsuit and say this is hurting me and that there wouldn't be a defense they disclosed it but if the question is have they violated a federal law now probably not is is there any evidence in this record of consumer harm only in the sense that the consumers were told something that was clearly not true now whether that poison anybody or misled people to buy things they would not otherwise have bought we don't actually know that there were some suggestions in some newspaper articles or magazine articles that people should buy this because it has all of oil or because it's made from olive oil or in the case of one clipping that said if this really ha it does then they should then then then then you should buy it and dr crane himself has said in his deposition one of the great things about this is that we have this high concentration i've got two tires on which of course they did not have an issue materiality again they have not shown any lawful uses and in fact in the appellate brief statement made it that they violated the statute that's not really a matter for dispute what they cannot point to a single use of the product before the relevant date that actually was lawful likewise they argue well there might have been exceptions to the rules there might have been exceptions but they never applied for them and that point is important for this that the rules that the f d a sets out for these exceptions say step one you have to apply for it before you use put the product out there they didn't do that so by definition pair say they were not even eligible for those exceptions in any event the date matters as well they didn't go out and get an exception so that they did not go out and put a lawful use out before june eighteenth of two thousand and two which the clients product contained all over  let me address the testing issue since the court raised it on the opening argument and that is this first of all the label of the product and it's in the various briefs in the record before you the label of the almost all product actually touted the test that they use they name the test and they said so they they quoted the amount of hydroxy tires on twenty five milligrams and said as and then they cited the name of the test which i can't pronounce and won't try but they actually cited the at that time second pieces on the reliability of testing our experts that we disclosed on rule twenty six said yes there were reliable test several of them to determine the amount of hydroxy tires on various products those did exist question about that but he was never disclosed and we never got to take any kind of discovery from the as an expert it's not admissible secondly all he said was that he didn't know with any test well that's not the issue the issue  is claimed so even though olive oil isn't in the product itself it does have the benefits of the any accidents which is so important from the olive aisle of olive oil also i'd like to state that again there's nothing before the court in the record concerning that there was a standard that was accepted in the industry for testing this product there is something in the record mentioned by your son as expert that says that they had tested but that does not mean that it was the except it's and for testing this this was a very new product in the industry and as i stated before it's been an ongoing process that still is not precise to this very day  argument concerning the testing issue and if it had been known at that time he definitely would have applied for it but i think the record is pretty clear on that issue as well