interpretation issue and of the plain language of the of the contract governs that's the settlement agreement the critical questions here are what trademark and trade name issue issue was that issue in the superior court action and what did the parties mean when they said that the trademark trade name issue would be litigated out to its conclusion in the us patent office proceeding the trade name and trademark issues that were at issue in this a period where the fifth and sixth causes of action for common law and statutory unfair competition which alleged trade name infringement and which are essentially the same claims are alleged here in a federal court action in those letters there and the first case i should trademark trademark infringement as opposed to the breach of the non compete clause which will compete appears in your fifth cause of action in paragraph seventy two twice right but also they talked about the infringement on the  action refers to similar names third cause of action paragraph fifty six confusingly similar names i mean you blended you blend of the two i'm not i'm not accusing you of of not having you know you  two different problems going on one was the use of the name the other was the was opening a restaurant within five miles those are two different problems and it's not i mean it's not and i think it's quite understandable that you blend of the two to say look they open this within five miles and that's confusing right sure and there's and there's certainly overlap between them but for purposes of what we're talking about we're talking about the the carve out for the trade name and trade of a trademark issues the point that i want to make is in terms of those causes of actions you've got kind of two parts to to those claims and one is that there was an infringement allegation there was an infringement of the trademark in trade name and the second part is there is the is the claim for for damages and for injunctive relief the plaintiff was seeking compensatory damages damages and injunctive relief asking the court to rule that because of this infringement that the defendant should have to close down or move their restaurants discontinue use of the name and so forth and discords into profits so that when you think the settlement agreement did i think this agreement do not apply to the trademark trade name issue that is at issue in the superior court action right so it doesn't say it's so therefore it is assuming searching that there is a tra different violations that were being allowed when was the non competing within the distance in the time frame that they weren't supposed to be operating similar restaurants regardless of the name and then also the trade the trade name the use of the name it's tie which  very similar to p m i its time which was part of the the purchase sale was for the goodwill in the for the trade me i think the problem is that if it meant what you say it means then wouldn't have stopped after the disagreement and tra in your view is just a personal no not at all super fine your honor because i think that what that means is that that that phrase means that the issue which could be resolved by the u s patent office which is pending or was about to be pending whe reopened it would be resolved to its conclusion what was that you wouldn't need that sentence if the if the sentence before it just struck the whole trademark trade name issue out of the agreement well but i think i think i think that the important point to acknowledging that they were going to reopen remember the us patent office proceeding was was suspended while this litigation was in force and i think that what we need to realize is that the the until the the t name issue in terms of who owned it who had a right to use it until that was resolved they couldn't get to the second part which was damages and what's going to be done about it so they had to live a gauge of the conclusion the proceedings that were able to be litigated in the in the patent office which is who owns this who has the right to this name and then once that was decided then they could come back and that's where it's important to look at the previous sentence that talked about the trade mean trade name issue that was at issue in the superior court because what was that issue in the superior court was not only usage and ownership but also remedies and so the first part of that would be resolved to its conclusion by the patent office and once that was done then that would remain the it had not been the  you think the fifth and sixth were preserved by the settlement agreement right ok how could that be preserved by that there's no reference in there whatsoever to anything it's all incorporated by reference you just said about it's unfair competition problem as i look at this complaint yesterday is that that trademark issue also shows up in one through four ok well it's so it's very difficult to tell because you've got you've got allegations about confusingly similar names would say then the summary judgment would be improper in terms of the whole complaint and with the understanding that the the issues regarding unfair competition are were race judicata at it to the extent it comes back to to  be remanded for the proceedings in the trial court or if this court's going to resolve them but so i think that i think that rather than maybe focusing maybe on causes of action it's a big focusing on what is the trade name issue clearly the trade name issue was four mile radius and it says but it also says that while the u s p t o action is pending they won't open a new name they want to buy new restaurants but i why i think what this paragraph b does was to defer allow them to continue operating while it was certainly it covers the actions the continued use of the the name after the p t o ruled now whether it would go backwards in time you know that if he is even portugal backwards in time well you know the cause of action was for infringement and the original sales agreement for the restaurant included goodwill and trade name so you know i think that you know the allegation is that they were infringing from the get go from the minute that about a month after the sun i can kind of see how late have a cause of action going forward from the end to the p t o but i don't see it because you might have that anyway because it wouldn't be covered by the queen because it hasn't happened yet but i don't know how it can come back worse well  right and there was multiple causes of action in the in the federal in the federal claim that there was multiple causes of action in the federal case and then ask me what period it covers right i think that i think that arguably could go backwards because the infringement was happening you know in other words at the the time of the sale agreement mrs miss serious about the trade name and the so the arguably the infringement happened right away so regardless of whether or not you know that and i think that even if there if there had been no u s p t o action at all she still could claim that there was an infringement based on the contract and so i think that you know it could go back that way what we've got now from the u s p t o action is the is the conclusive evidence that yes there was an infringement or at least that she has the ownership whether you know whether a quarter jury could find that she always had the ownership from the get go from that based on the sale agreement i think certainly that could be found say generally that i think that this is i think that the language is playing the way that i emerge in the court to interpret it but if it's not it's at the very minimum exam to do us and if the language is ambiguous as to what the intent of the parties was and summary judgment should not have been granted in favor of the defendants and and it should go back for trial if the court finds that the language is clear and that the settlement agreement did not preclude this federal court action then i think the court should and can look at the merits of plaintiff motion for summary judgment and determine that she has met her burden as to the cause of action there was completely briefed all the evidence was submitted the district court found in zoar that everybody had no opportunity to argue the issue the issue about whether the if the court finds that the settlement agreement did not preclude the this action in the district and that the defendant shouldn't have had their summary judgment granted then you've got to look at whether the plaint mentioned i asked at the end does his york is it your contention that the release assuming it means what you say it means for a change any claims forthcoming whether known or unknown forthcoming it could be a forthcoming claim but that's different from a claim about a forthcoming and factor than that happened arising out of the same facts which is the critical analysis here your honor when you look to whether or not the settlement agreement would preclude claims of trademark infringement or trademark usage or any other land america type claims arising out of the relationship here if you review the federal lawsuit the second the settlement result of that issue because the parties decided to let the p t us p t o decide who would own the trademark name it's as simple as that i don't understand why the trademark name issue is necessarily in try type was in its type your know what do you can you tell us what you think that trademark exemption in the settlement agreement was for yes i can my client paid twenty five thousand dollars to resolve the entire state court action which as these as your owners have stead intertwined everything related to the purchase agreement and and the intertwining between them up to that point and from that point forward that settlement agreement carved out in the question of trademark ownership that's what it said these parties were represented by counsel including trial counsel and the federal case also drafted this agreement they decided to let the u s p t o decide existing that occasion that was stated and they said let's let the u s p t o decide who should own the name but what what's the purpose of ownership if not to be able to bring  would say that they probably would against any other defendant or any other party that would be infringing that my client already had an existing settlement agreement with a result of claims against that let's suppose let's suppose that your client decided to open a restaurant called it's thai time  the time in this case it just didn't exist does that apply there's a supply of that i would say ok i think those are two separate analysis the one is whether or not on the basis of the land him that states a claim gets registered mark and i would say it not but not with regard to anything he's going to open in the future if it's if he's got a if they've got a service mark i would agree with you i would agree with you on that that is true if you open something filed the federal lawsuit alleging new facts unrelated to the p not what's happening in the future i disagree with that because in section ten of the settlement agreement where there was the quote unquote carve out they had and then occasion as to what portions of the existing case in claims would proceed and where and they were to objection it's not doing him any good now it would for any new infringement so if your client opens its tie in anaheim clearly outside of the five miles whether they're currently located then they would have a c restaurant opened after the p t o makes its decision is that barred by the settlement agreement i would say it would not be barred not a bar but not carved out of that particular restaurant they can bring all those rats today and they could bring a successful  may be infringing on an existing ownership mark that considered a claim under the land him act that's just not the facts here right i'm just trying to figure out what the settlement agreement means and i'm trying to figure out whether whether think whether they just got a pig in a poke here because they didn't get anything that would prevent your client from doing anything they wanted to in the future so i'll try to do is give you a hypothetical in which they opened a new restaurant after the us p t o and they opened it clearly farther than five miles away from your client restaurant does the settlement agreement protect your clients against against a lawsuit by them i would say it is not that one state to lend him at but the but the answer your question you asked pacifically as to whether  agreement which was the escrow agreement that's throughout the record and also the settlement agreement the state court case which would result for my client paid money and return for the dismissal of those claims and his fifteen forty two waiver and they agreed for any existing litigation related to this particular disputes that were already wrote lyricism in the us p t o there would be result there your your your your understanding of the settlement agreement and paragraph eleven and eleven b in particular is that your client effectively bought the right to use the names on the restaurants that are currently had in the locations where they were currently located and that that litigation was completely settled and no matter what happened in the infringing because you're not this is this is does not belong to you and then your claim is that they can continue to use it anyway i would say that's what i'm having trouble with i would without getting a law so in the future for the been established and your position is you can under less continue to infringe i disagree that it's an infringement or that any of the existing restaurants were infringe on that's i mean what that's to be litigated that's that's that's what she's trying to lead aga think you may be right and you'll win but it wasn't a good it was litigated in the state court it was resolved there absent the u s p t o litigation that the parties agreed to go ahead and lift the stay and resolve their the entirety of that claim would have been resolved in the state court they chose by themselves represented by counsel to enter into a settlement agreement in written form signed off by the parties and their attorneys saying that this particular issue regarding trademark me for not this was at least a with respect to future infringements what would we do then it was literally send it back for a trial or what i don't think you can you would need to do an analysis this analysis then based on this case and whether or not the second amended complaint stated in the federal court action arises out of the same facts and circumstances of the state court case because if you dead i mean to me it doesn't really say it's kind of a good and by the read it at least calls to the names they all agreed the resolution be here my client would withdraw its objection to the trademark p my it's tied cuisine which he did so if you opened a new restaurant that said p my any it's ties something  i believe it was a the one thing is it's a modification of the purchase agreement which that might not have been entirely well reflected in my briefing but the purchase agreement the escrow agreement was a not compete clause with a five year or a five mile radius and this settlement agreement reduces it down to four miles that's because one of the restaurants is within five it's money is the negative implication of this once it's determined once the us p t o does its job and makes a determination that they you can or cannot open a business with that i would believe what it is is this particular clause my interpretation of it is that it was basically a restriction on any activity by my client and then if my client chose to take further action after that point opening new restaurants he would then be he may litigation is resolved anything else new besides these existing restaurants or outside of the four mile radius that would be actionable now this is a valid term i mean you look at the contract it's  specifically four mile radius there is an exclusion it's consideration paid for my client that's a valid contract or is an ambiguous i disagree with that analysis i see specifically that it means exactly what it says with your honor's i'd like to address on page twenty six of the opening brief i've quoted the language used by defendant's counsel at the time the settlement agreement was put on the record where he specifically said that the matters that were being settled were that the competition between the two it says there will be generally release as to both parties in terms of any further litigation between the parties upon agreeing to the issues at hand in this case mainly being competing between defendant restaurants and plaintiffs restaurants and particular rest for us some particular set of restaurants is that part of the issue here i from my understanding your question i think that what she purchased is the right to use the trade the name the name that was being used by the restaurant the time of purchase  client but then they also rejected the defendant's application for the use of the of the trade name its tie because they found it to be too similar and too confusing so you know to the extent that they're continuing to operate using the very very broad relief of each and every claimant uses the word claim whether actual potential known or unknown which you know source of has ago thong and it's tie when you get to two when you get to leaven which is the exclusion exclusion doesn't use the word claim it uses the word issue and an issue is something sort of sub to a claim so all of the claims that's claims one through six were labeled as claims in your state court complaint and ten says we've settled every claim eleven doesn't reserve any claims and certainly doesn't reserve them by name it says we've preserved an issue and issue that might be related to a claim but the claims have been settled by ten you've only preserved the issue in eleven well but i think that if it's if it's read that way or are then the then i think the statement the very clear the very defined statement the trademark trade name issue will not be resolved as a result of this agreement would be meaning if you won't be resolved the issue is going to be resolved in the p t o and that and that would be an issue that i think council i finally got him to concede if they open up new restaurants not the ones that are currently existing those are the ones that are listed in paragraph eleven b if they open up new restaurants after you've got your service registration your trademark registration then you have a right to go against them they were going to be limited to they sort of grandfathered these clauses sort of bought the rights to go ahead and run these restaurants that's what i mean that's the way i read this but you've still got you've still got your mark and you go against any future restaurants they open if it has the words it's tie it and that the patent office said that that the defendants have no right to use the that well no and i would again point to the language in the settlement agreement that the defense counsel brought up and said we're settling the competition claims here that's and that's what their lawyer said at the court hearing on the