prejudice why is it of any moment that the two of you would like to have this cited the appellate level well i believe the rd circuit not observe a strict rule against the heller view chases where the parties have stipulated to a well it's a little unusual but if you if you're going to weigh in on that that could help us i guess do you are you telling us that that your client will not be pursuing the counterclaim i'm not prepared to make that one to consumer fraud act claim this the district court indicated this is a business to business transaction you are you you bought a bunch magnets in bulk to resell they were printed with things you wanted on them but you got them in bulk and you sold on how is that any different then any other fight between a supplier and planning to complain and complain explicitly states that the quote unquote merchandise has bought from i t c consists of printing services well that the complaint also says pretty plainly that you were buying magnets from them which is in fact the case you bought a whole bunch of magnets and then you sold the magnets you did get printing services i puts up on it for you that you wanted but isn't it the case that we have to sort of look and decide as did not involve the magnets had the magnets not let's say to refer a refrigerator down we would concede that we do not have a claim under the new jersey consumer fraud act but the unconscionable act  are taking no packets artwork and copying it and this involved a printing services will you think that i'm a business a business that they acquire goods or services from another business is a consumer under new jersey law that's your legal position right i only hope position is that a business can be a consumer and a service is can be considered merchandise under the new jersey consumer fraud acts ok it's a reseller a consumer a reseller can do you can sell more but the fact is not to resell the services that they got from i t c they resell the magnets but as i stated before the unconscionable act alleged was not with the magnets it was with the services that were not be sold picking up from what judge jordan said before if we take your argument about removal services or goods to its logical conclusion could really any agreement to buy a product from fabricator turn into a certain service contract or be considered a service contract i don't believe so because in this case this was an eye teeth the product that was purchased this was the packets product it rejuvenated with packets these designs of the magnets what was complaint made very clear that the services of this contract predominated far over it goes had i do see not been able to provide printing service that pakistan would never contracted with i t c in the st place the magnets themselves were in for dentists the main thrust of the contract which was printing services complaint describes how i took the offer their services and what you ended up buying were some services and a whole lot of magnets right claim hinges on the product design but look at the design attendant uniqueness think of slogans that were printed on the magnets which was i guess creation well once you once you say and acknowledge is it your right to do because it's pretty clear that you say that in the complaint isn't it in fact the case that under wal mart for some aren't brothers there can be no such thing as an inherently distinctive product design i think that when it comes down to it product design which was visible to the customers through the trade dress which consisted of plastics packaging made this product  distinctive to anyone that does not answer my question my question is doesn't some our brothers directly refute what you're saying how can you square the position you're taking with some our brothers where the supreme court says product design is not inherently distinct it cannot be inherently distinctive and this is the lower court similarly ruled as such but where it ever was that said  fleet would we just have to deal with what you pled and you pled and you've acknowledged here that you've asserted that you have a product design and that it's inherently distinctive now i'm just trying to square that with some are brothers which i'm having a hard time doing but given given the time difficulties here my colleagues will indulge me i do want to ask you a question or two about things because i know you're a know your colleague is going to get into it and you reserve two minutes st level which may not be enough time to hit this then talk to us if you would about the assertion that what's gone on here is  fundamentally wrong and unconstitutional use of new jersey state taxpayer monies to fund a private lawsuit  can you can you respond to that that argument that this is the this is an abuse of the system because the kessler's are enjoying taxpayer money to fight their fight against another private entity and that on evens the balance field that can't be consistent with the law in new jersey what's your response to that well as a lower court held and as me agreeing with this whole claim that they are entitled to attorneys fees because our law firm is somehow unconstitutional entirely and has no business being brought up in this forum are late but has lost so since really where where else would they bring it up you're there on the receiving end of a repaying what fifty bucks an hour a fraction of what it would cost them to to do this in a regular suit so why is this the wrong time or the wrong place to bring that up where else would they do it if i  public and private approval from the new jersey supreme court for its operations and contrary to i think you contentions new jersey taxpayers are not subsidizing record loss o c it's representation of packets in any way how how how can that be the case it's in the record it's in the record that you guys are you've got your supervised by by a professor who's money who salary is paid by in part by the state it's you use the facilities you use the lexus nexus and the westlaw you use the utilities you use all of the benefits of being free on campus like what how can that not be how can you say that's not subsidy from the taxpayers well in response to this we would argue that the proper venue for actually seem to bring this up would be an ethics committee  mr coleman we'll hear from you different from the palace here i think that for from our standpoint the that the court distinction from some of the cases that to which that the court previously called concerns are all to the parties attention such as braley the city  perelli is that the be a page of the appeal here concerns the claims that were dismissed with prejudice it is true that the counter claim was dismissed without prejudice and i don't disagree that there and it can't keep being litigated then why doesn't the court concerned that judge should garrus identified that is piecemeal appeals exist right on the face of the case i think from my standpoint i think that the piecemeal appeal issue that's the other way this is in that for our standpoint from the at least standpoint we would we were facing a situation where we could that's true in every case right and in any case you could have somebody say well i really want you to answer this question for me right now court of appeals because i'm a i got this other question i still want to try but you answer this one question for me now that's very definition of  our counter claim we can but right that's but this is that isn't that's the point isn't to disappoint mr coleman that you can refile i mean if if you really want this decided maybe you and your client should decide and and tell the court promptly we're abandoning that we are there we represent that this is not a claim we're going to pursue because if you say you are going to pursue or you reserve to yourself the right to pursue  so that's so interesting i understand that the court's concern here but i would simply note that there's that there's nothing square there is that the court's precedents are really not on point to the best scenario where there is appeal from a from a pla and the thing you heard mr fleetwood arguing about which is this was predominantly a service contract and in a briefing may indicate you know this was at least a fact question what was your nominating and we should have the opportunity to get in front of  now and businesses can be consumers too what's what's wrong with the argument that this was then bot printing services and or a consumer in that respect and the mere fact that they use the word service in their complaint is not some feis you know under twamley at all to use those sort of labels and conclusions does not change the underlying factual matter of what the of what they allege which is that they were purchasing magnets for resale to others that and that simple facts answers both and i think it built into your honest question is a little bit of of that the contract claim as to whether it's a good versus a service and also one of the consumer fraud act as to whether this is a under which it is certainly true that a consumer can be eight and baby i'm sorry that a corporations can be a consumer but it's also true that a corporation can only be a consumer if they are the actual end user of the goods as opposed to here here the allegations of the complaint the factual allegations of the complaint expressly state in the contract out in the in the baseline allegations that they were purchasing these magnets for resale and merely saying that it's it was a service in some in some animal and in logical sense of the word doesn't change the underlying fact if they were buying   attorney's fee claim and assertion here that piece of the appeal certainly isn't to the district court seemed to say a little bit a pox on both your houses you know you you didn't you into this without letting them know that you're in the business yourself and would be a direct competitor and therefore you're you know reading a little bit between the lines  there's there's dirt on both your hands you can both bury your own costs if the court understood that after living with this case for a substantial period of time one sentence in the or it's order mentioning that it did not appear that imagine this company had told us that it was selling in competition there is that while while that may have been the courts understanding there is literally no support whatsoever in the factual records and as the courts are aware to it properly actually it's a proper exercise of the courts discretion needs to be based on some facts in the record and there is no fact as a record that states that in fact the record is actually to the contrary the record shows that the very st sale that was made by gifts of these magnets was a purchase from from imagine company's brochure that that in this is the testimony of both parties that there was a brochure or a two thousand and five brochure that was handed byte by imagine this company to pat gifts and then two years later two years after after and this company had originated this design that that's when that's when i guess st placed an order from this brochure so it's it it's eminently clear in the records that that that that that this was a that this was a design that this was a product that was being marketed and sold in a brochure a whole separate part from that even if that were not in the record and it is there was there was correspondence sent to to counsel for packets at the very outset and yes laying all of this out if they were counsel that were new to the case and they didn't know this and this this letter to counsel is on the record it attaches a copy of that brochure or at internationals all of this information and you need well let me ask it's an unreasonable manner for them to have this subsidized support but can you point to any case anywhere where unreasonable manner has been interpreted to get at the underlying structure of a law firm or its funding or anything like that is an unreasonable manner always about always about the behavior of attorneys in our parties in a specific case if you're on a recess and it's a novel issue i can't if you want to talk to the supreme court in new jersey about this there are other avenues and mechanisms to bring it up but this is this litigation isn't the vehicles work yeah that satellite's that's absolutely incorrect counsel refer to it as an proper if if if if case but not litigated in a reasonable manner we raised zero ethical issues here here whatsoever that's not that's not an issue that we've put before the court and octane not just consistent with lanham act law but we shouldn't we should take lanham act attorney's fees law which is based on pattern that law and inserted into a new jersey state unfair to that to that latter point it's one once again and this is we're not aware of of any circumstance where where a where it's where a state has where a party litigant has taken subsidies from the state to prosecute a claim against a competitor and further to your honor's question as to what the basis is again this is the new jersey constitution which is which is which is specifically spelled out i have no quote no just no doubt that there are other  constitutional issues that may also come to bear here but we focused on that one because it's it's it's very good because from our from our standpoint it's directly on point there is maybe no appropriation of money will be made in the state or county you're on mute mr fleetwood sighing on the st part of my rebuttal i would like to address the issue of train tracks not extending the product design i will quote from the lower court's decision on this nat act it says that although historically train tracks as part of the packaging label product it has been extended to include the product itself and this is that's that's true mr fleetwood but you're missing the point the question isn't whether product design can be distinctive it's whether it can be inherently distinctive the question is whether you have to have proven secondary meaning right adams the position you've taken is it's inherently distinctive and that's the question that was put to you earlier doesn't smar brother say it cannot be inherently actual customer can use it as to whether the product i was told i t c was packets product you had you had nothing but her self serving affidavit right she had yet you put no evidence in the record but her self serving affidavit about customer confusion right i believe that this evidence isn't enough for it to go to the jury and the jury has to decide the strength of the evidence not the lower court on a summary judgment motion there was evidence they act in because it was a summary judgment motion because the lower court disregard of this evidence they erred can't cite in this case on this motion furthermore i would like to address the new jersey consumer product line once again and just say that makes goods and services contract as well recognized jam labels in this case care was a direct distributor of prepaid phone cards and it's opponent and them was someone who printed these cards and gave it to care in order to sell in this case  that there definitely is that courts have recognized that next services and goods transactions can fall under the new jersey consumer products when the front alleged or the unconscionable business practice alleged as in this case involves the services and not the good