judgment big what it appears to may happen to here is that a district judge who frequently when summary judgment is granted the summary judgment ends sure how your client has been injured by this judgment collected on what happened in the district court a couple of reasons here why sportswear still wrong and not entitled to anything and effectively that's what you've got well there's reasons that sportswear as a grief here one is that the district court order is going to or will likely have reclusive well for example if scad if the plaintiff here files a new lawsuit based on its five new trademark registrations which have the same text god would surely argue this lower court order has and that here summary judgment was granted for defendant without specifying any relief and although the judgment was as judge posner called it radically defective like the one here in failing to provide any form of belief but still finding in judgment i think for both of those reasons and also of course the informal percussive effect that will happen for a plaintiff here because this is not millions of pages we're talking about on the website it is just fifteen or so pages that populate with different data as judgment and could have standing up to appeal if that party would be subject to that judgment  property boundaries can't be extended outward forever in the us trademark rights do not come for a right to prohibit the use of a word or words generally the boundaries are always tethered to actually used in a marketplace and associated with particular goods and services on which they were used trademark whites are not created by a piece of paper in a low level administrative office this is two in time but it is not true in the united states without boundaries the you implicitly are arguing for just your arguing for on bunk reconsideration because you recognize that we're bound by this line of cases and we have to apply it here one explained how boston hockey would apply here and them over over many decades boston hockey has been narrowed and the triggering mechanism language from that has been written several times that it does not this court held in sovereign military hospital that the th circuit should quote the climb to extend the error of dieter any further than necessary but extend is exactly what the district court this not extending  seek you know i mean we're bound by we can't decide not to apply it and we can't overturn it ourselves yes your honor but we can decide to not extend it further as a district  lawsuit but the strength presumption in its registration cannot be extended to anything other than plumbing fixtures for the likelihood of confusion else consult the faucet now go back and say oh now we have an you know your client is using this gas mark to represent don't you think there's a difference there i do not your honor it sounds ludicrous but it's  trademark for educational services but you're your client is counting the call and customers understanding the association of all to the case of strength i think plaintiff is asking you to take judicial notice here of consumer perceptions about sponsorship is simply no basis in federal government to a one for such judicial notice of consumer perceptions about sponsorship there was no evidence showing this alleged fact and it's clearly objectionable to the defendant and the summary judgment standard required viewing facts in the light most favorable to defendant you're your client is trying to make money off of the educational services and everything that goes with the name yeah right you know they still have to come to the court with some proof of life ahead of confusion they have to have some proof of they have conceded there's no so what's confusing here and so they switch they change tacks to talk about sponsorship confusion web sites that disclaimers actually do have a quite powerful effect but the whole point is you have to come to the court with some evidence that this is creating confusion in the minds of computer consumers even if you don't come with the survey which is what's typical in these cases you have to come with some evidence that consumers might be confused are important factors in the likelihood of confusion then alice's are the strengths and weakness of the market and the lack of actual confusion the court didn't really focus on these or give them weight but that's that's another briefing but we should acknowledge that a great many trademark cases don't involve evidence of actual confusion that's the combination of this two factor elevation and the dieter presumption of strengths in the likelihood of analysis creates a super powerful trademark another there are several reasons to consider on bunker view of the other and most of those are the sovereign military case just outlined very clearly and carefully what those reasons are i want to add just to that i found in preparing instructed the district court to assess the strength of the plaintiff's word mark the district court did not follow those instructions it did not give sufficient weight to the lack of actual confusion nor did it consider that plaintiff has done nothing to prove any should have weighed heavily in court for a favor that the district court simply did not analyze the similarity of the goods and services this means the judge accepted plaintiff factual allegations are true and that is not the correct posture on some government even if the plaintiff marks are held to be strong the defendant just going here i point to a case in the federal circuit of the university of notre dame which was against a producer of army food in that case the school mark on was even found to be famous which is far stronger than the mark here and the school had proven use as a mark on lots of commercial i don't the federal circuit still found that the difference between the goods and services in that case also in the new university of notre dame the record was devoid of evidence on which to base the finding of likelihood of confusion just as it is here the district court also was required to apply the proper legal standard i don't have any more at this time you're on a splendid let's hear from your adversary why didn't you go back to the district judge and say your honor we haven't gotten a remedy yet well your honor i our our prior our client primary objective this lawsuit was to get sportswear to stop selling the infringing march and which which would mean you would want an injunction right well your honor we agree with sportswear to extend that  that's really a new case or controversy that would have to then be adjudicated it and i guess your point is do you think that this judgment might this is perhaps someone speculative might have some reclusive effect where that to happen again well your honor i would point sure your honor to the supreme court's decision in b and b hardware which is cited actually in sports where it's brief for a different proposition and that in that case the supreme court held that a likely a finding of likelihood of confusion by the trademark trial and of appeal board would have collateral estoppel effect off of collateral estoppel in a pending trademark infringement litigation between the  i don't i don't know that i can fully concur with that characterization i believe that the judgment half are close to the facts and if for ever if whatever reason the th circuit doesn't believe that it has  precludes the fact that i think the issue really is that it's not a final judgment at all and the issue needs to be so that's what i thought you might argue today which is you requested relief that has been not determined and therefore this isn't really a fine order yet and there is some support for that your honor and for example the supreme court's decision and and liberty mutual for two for us seven  would be totally with you on this point had the district court not then written this case is dismissed what do i make of that well i think there are decisions including that supreme court's decision and liberty mutual that suggests that the court use of that language is not dispositive on the question as to whether if a final judgment and so i don't i don't believe that the court's language where the supreme court has said that you know a final order is one where there's nothing left for the district court to and when the district court enters an order that says this case is dismissed i'm having a hard time understanding what order had been issued of course the case still wasn't over because that was just a class or difficult order i mean i think that's why in chase manhattan the th circuit has said that you can't just look at that statement out of context because it can be considered overbroad if you do that so let me ask you this what it has been possible is there anything that prevents you from going back to the he would go in and find a row sixty b motion that's based on mistake but the problem with that is there's a one year comment and it's been a year it's been more than a year since the judgment was there is that why you say you can't really think of a mechanism yes your honor is there and if you will neglect in sixty days that you could resort to counsel on this point i think judge rosenbaum was gone i was gone but are we are you saying that this was a conscious decision or it was this just a mistake that the party that you did not seek to have the judgment clarified or that you sought to recover any particular damages or attorney's fees what was it just something that was missed or was this a conscious decision not to seek or do you know well we were the council so i you know i had knowledge that we knew that the order was issued without a warning relief and i think that's about all i can say about that that's that's fair appreciate your candor but if we were to find that there was no article three standing would it be your intention at related merchandise let me make a suggestion to you counsel that i think might help you and your adversary that just occurred to me the berkley's of effect if we don't get hung up in collateral estoppel concerns i guess as to what happened retrospectively that was the subject of this specific that's been adjud preclude fact we don't have to speculate about that the parties can't go back now and really litigate whether what sports where did in the past that those the subject of this  under b six any other reason that justifies the relief and that just refers to a motion must be made within a reasonable time and the ru sixty a provides that corrections based on clerical mistakes oversights and omissions the court may correct a clerical mistake or mistake arising from oversight or mission whenever one is found in a judgment so it seems to me that if we found we did not have spam you would have the remedy of going back to the district court within a reasonable time to correct that mistake so that reason alone their jurisdiction here their standing but even if you didn't see that priors point is that if there were future litigation and you know this litigation could be a relevant consideration in the future litigation to prove you know kerry's historical point and so it would have  our contention that the case for infringement here is straightforward sportswear use identical versions of scats forty year old marks together with other and to show related to our client with the express intent to benefit from the association of th scat that alone is sufficient to find a likelihood of confusion in the absence of other factors that mitigate against confusing your honour's no such mitigating factors exist here this isn't the case with competing st and then the concerns as was visually indistinguishable from officially licensed merchandise the target customers for apparel were the sane current students and their proud parents alumni and faculty and fans of scab athletic teams and there is no evidence critical or would we could we still have to affirm even without that presumption i don't think that the deed or presumption is necessary for that district court conclusion of a likelihood of confusion primarily your honor the evidence that makes it abundantly clear that consumers purchasing gas branded apparel from sportswear as website would know that those that apparel refers to our clients that's the question that's being answered by the strength factor of the likelihood of confusion analysis and there's really no factual dispute whatsoever as to that question the target audience for sports shirts are people who recognize scabs marks current students and their parents alumni and faculty and fans of scab athletic teams and sports work concedes all of that so this isn't it isn't true that proving of advertising expenditures and what not the facts here demonstrate that the that the marks were strong enough and strong enough is the is the appropriate question for purposes of likely the confusion that that sportswear have to prove that in fact consumers would be confused is not the standard of this circuit or any other circuit actual confusion is not a necessary requirement for proving likelihood of confusion of confusion is the test and so especially here where as here we have an expensive goods and a low volume of sales less than five hundred dollars units over a five year period courts have made clear that the absence of actual confusion elements evidence is not significant in a case like this sportswear makes several points with respect to its disclaimer but this circuit in highly analogous situations in hockey and light for example have held that a disclaimer is wholly insufficient to obviate the confusion that would stem from the use of the marks in a minutes thank you ana i would like a circle for a minute to the b design because that i think was kind of confusing in the briefing i think the most important point there is that you can't have a trademark right of any sort if you're not using a mark and they had set on the outs meant if they're not you know this is really kind of a new argument that was never addressed an opening that adversary really never had an opportunity to address and it's i'm not sure it's really proper r thank you ana mr says that the there's no requirement to prove actual confusion and that is correct we have never disputed that but there is a requirement to come forward with some evidence of likelihood of confusion some evidence of sponsorship confusion if that's their argument and they can't just ask the court to take additional notice of the main fact that they think consumers are the case here even in the recent supreme court looking dotcom case the court wrote an unyielding rule that entirely disregard consumer perceptions is incompatible with the bedrock