trademark infringement on the remain and from this court the last time specifically failed to properly apply the law of all or substantially all with respect to the goods that were involved here this is a section three thirty seven trademark case that was brought against my client and other respondents for alleged material differences in products that were sold overseas and honor it's it's not the standard it's not purely numeric the last time we were here this court meticulously explained to the commission how to properly apply the standard and that was the issue the substantial it did not say that it specifically did not say that all it said was deeds this is how you do the calculation it's up to the commission to apply the law and the law is much more than just a standard a lot of diminishment that yes it corrected on the commission side was how it performs the numerical calculation it said nothing about changing the standard that was set forth by this court in s k f in two thousand and five which specifically recognised that  trademark owner who is putting in commerce the same exact goods that exclaiming are infringing must also show that there is a diminishment in value to its mark beyond that that was caused you're looking at a grey market infringement and the trademark owner is engaging in the exact same conduct as k s and the subsequent bordeaux and their cases hold that you must the trademark owner that's our position your honor but this is this is part of the all or substantially all standard when we're looking at great marketing trenchant when the trademark owner and has committed the same conduct of accusing the respondents of and in this case we have the commission factual finding that the trademark owner's conduct was so substantial that the trademark owner's conduct was also causing consumer confusion that in that in that case under the law you must look at whether there's a diminishment in value beyond that which was caused by the trademark owner itself and this was set forth by th case this court was meticulous in explaining what the percentage a ruling was and it was also meticulous in saying that said the commission must go back and properly apply the all or substantially all fan and each time the commission has  has not properly applied the all or substantially all standard they've this particular part of the of the law is put in place because the trademark owner was engaging in the same conduct that it's accusing the response of being infringing in order to in order to be successful on it on a case like that the trademark owner must show according to s k f much show that its mark has measurably diminished in value as a result are as a result of responded kind of beyond that which was caused by it's own it it would be it would be inappropriate has a harm to the to the trademark owner's trademark that was caused by the trademark owner itself and then say well you don't have to prove anything else you don't have to prove that there was a further harm caused by the respondent in this case and in this case there is not and there is no one pair of evidence of any any harm caused by respond if you don't agree with your interpretation of specifically has not in the last time that we're here in the deer case that this court held that the benchmark for the commission to consider is whether consumer this would have likely been confused by the trademark owner's conduct that was the standards that the instruction that the commission that this this court of law gave to the commission the commission actually found that that that standard that instruction that the court specifically provide in the commission's decision it said the standard is no longer whether consumers would likely have been confused by the trademark owner's actions it said now is that the the standard requires a ruling in the trademark owner's favor unless it's established that the trademark owners non conforming sales have likely altered consumer perception of the trademark goods so now it's changed it from consumer confusion to now on altering of the entirety of the consumer's perception the commission he that dear mets burden of proof because there was no proof that consumer perception had been altered by theories actions but that's not the standard that was set forth in the benchmark that was set forth by this court in here and bordeaux and  f this analysis and that application of the law by the commission is wrong because it goes against what what this court had set forth in several cases now also significantly that that standard new standard made up by the commission shifts the burden of proof because under the new standards set forth by the commission in this case once any consumer confusion is found by is found the trademark is really somewhat procedural because i know that it's the other side has asserted i'd like to hear your response to that this is the third time this case has been before this court and the last time the court states that in the commission refused to consider that now that i agree that the reason this was vacated was because as an american standard but this court in the deer case the last time did not change the standard this co meticulous in what the standard is when we're talking about the numbers with meticulous i'm talking about what needs to be done if it was going to change the law and if if the commission is affirmed here this court will be instructions the deer court reminded quote for the commission today to determine whether three point one to three point four percent is an insubstantial percentage such that substantially all of the authorized harvesters sold in the united states because it was a question of fact now the commission as closely followed this court's instructions and apply the test that was told to apply the commission found that substantially all of yours authorize harvester sales or the north american variety but a bundle of traits associated with the mark so why do you think you sent it back ninety six percent his last number it sounds like substantially all so why reason back like what we well the court sort of decided on its own but it said it was sent it needed to be sent back because it was a question of fact and that was for the commission to to decide and see if there were any other circumstances that would make it dollars already made this same diminishment argument the last appeal and the court discussed this argument and tear it down the argument on persuasive also in the in the commission's previous remanded terminations the commission could applying not all or substantially all test the court stated that quote the such benchmark is instead whether consumers would likely have been confused by the trademark owner's actions and the fact that page thirteen sixty one differences between the grey market products in the us products yes second part of the test is whether any differences other differences material to consumers and that in compass is whether or not  substantial test comes into play specific deal was able to prove that all is substantially all of the products under the ninety six point six to ninety six point nine stand were north american version machines therefore as a result of proving that the used condom did not contribute in any way to any diminishment value it's the respondents count that contributed to the confusion in the marketplace right and as set forth lamport any introduction into the marketplace of nonconforming goods necessarily devalues the market because they've introduced into commerce products which don't comply with the quality control standards and therefore they're responsible for the diminishment die so as part of this all substantial test and so the speaker honored answer your question and we believe that the commission got it right when it said it's really a recasting of the all of substantially all test it's part of the analysis run in this case we have hard evidence of diminishment in value we look at the testimony of the witnesses which the commission in the a l j had the benefit of simply they have janet and there's testimony by mr meister sic testified that consumers in the marketplace were confused mr meister testified that over eighty percent of the consumers that encountered the european machines were confused and they were harmed because they were accustomed to account of the north american machine but they encountered the european machines in addition mr snelling mr souter testified of the problems with the warranties european machines didn't have warranties us machines consumers were quite upset that as a result of the response behavior and so they should be held accountable and gear should be entitled to protection  decision acknowledged all of your those arguments including the diminishment in value argument in stating i paid thirteen sixty two of its opinions that it did not find them persuasive at all to us that is fairly clear that this argument to be considered it was rejected and i remain and the only issues this court wanted to have decided was the all or substantially all test the commission properly applied that test in light of the facts and set forth a very sound decision which is supported by the substantial evidence of record that if this court wanted us to address that that certainly would have been the appropriate time but clearly it did not want us to address that thank thank you your honor for for this additional time we've got a real issue here because the commission is saying and it's and its decision and saying diminishment of value test is out you don't need to look at it we don't need to you know we have proof in there and you know we couldn't prove it but the commission never looked at it the commission never decided based upon the law that this court had set forth now yes this court set it back to the commission to look at it and whether all of sagely all isn't is an issue of fact and that up to the substantial evidence of the commission and the discretion of the commission but the law is not up to do is question of the  it doesn't say that if there if there is a certain number it's presumed that there is that there's a diminishment in value because this court in the rule of law provides that there must be shown some measurable  diminishment in value it's not really a high standard but they did meet it even though it was a low standard and the and more importantly the commission did not apply the law there's no there's no sport if you would to accept that then you're saying well then there's just a presumption of diminishment of value and that's not what the law is the law says the burden of proof by a preponderance of the evidence is on the trademark owner to show some measurable diminishment in value beyond that which was caused by its own