is the correct group of consumers by which this new district court should have analyze this case the nd is that is the polaroid factories and places in which the summary judgment centers make you know it might help if you just give us thirty seconds on the feb nd letter to the court with respect to the cancellation of the mark and how it affects in your view how it affects the the argument that we're having now you don't have to do much but it be nice to know where it fits and yes your honor under the proceeding is somewhat separate from the appeal and i'm not sure it's dispositive of any issue but the registration of the market does create a certain amount i think of relatively small amount but some amount of deference to the decision of the us p t o and in this case i think you know the extent to which it's it's a default judgment there is no one there you know when there was making that decision and i know that my adversary is going to raise  the issue that you never received notice of that but so i don't think it's a hugely dispositive issue but i did feel so we should basically we should basically for present purposes we should just ignore it and go forward and then worry about it afterwards records decision fundamentally identified the group of consumers for reply alls software product as advertisers and sponsors and i think that was an error i think when you're dealing with internet companies where the primary product is essentially free and you're what you're trying to capture or user reviews and user attention and then convert that into advertising dollars the relevant group of consumers who should have been have who should have been analyzed or people who read reply all content online people who are looking at the content as it appears on its own and other websites i think its business model is fundamentally the same as companies like facebook and twitter where you have user generated content which is then being used to capture eyeballs and capture reader attention and then translate that into advertising dollars is a slightly unconventional posture given the history of the lanham act when you don't have a literal point of purchase but it would be i think sort of absurd to claim that a company like twitter or a company like facebook is not entitled to protection in the marketplace for your reputation and your comment well respectfully your honor i disagree with the idea that these are two fundamentally different products i think they're competing for the exact scene use case in certain ways people who listen to part time to sort consume media on the internet i think  develop traction along those lines but returning i think to the question of how different the products are think it's an open question in fact i think the idea that internet users are necessarily only listening to podcasts and would never consider blog style formatting or synchronous conversation is a question that should have been resolved the trial and could not have been inferentially based on the record front of it entered it summary judgment against my client doesn't seem to me that internet users can be that it terminated just in itself per learn your honor i think that would i think that would be right in a conventional sense of my product to say if my client was selling you know widgets as opposed to furniture and the fact that they were both on the internet would certainly not be dispositive innocuous but here we're talking about media content on the internet directed at similar markets similar audiences and similar people and you see it in the examples of confusion where you internet user forums twitter users are in fact confusing and of course the polaroids factors are only use when there is no direct competition you're confusing the two only in the sense that they see the name and they call up one of the one of the companies and say are you the company that does x and they say no we don't hear you do that that's the end of it i mean that or making facebook posts and and in those cases we've been looking at sponsors advertisers and people who use work file products but it leads to a nd question which is do you know it has argued that these are simple typos or misdirected posts but in the context of media on the internet this is precisely where we would expect to see confusion and it's among this user base that we would expect to see for people mistaking one for the other or confusing one for the other and thinking that there is some association between the two so i don't think it's simply the case of calling up one company and finding out that they're in totally different space and think it's an example of two companies operating in a fairly similar space and people being confused about the association between the two codes granted summary judgment on the federal claims and then do the same with the state claims but without really any discussion about supplemental jurisdiction and i'm just curious is there diversity is there diversity  know there is diversity around or might you know that reply all is is an incorporated in delaware and is currently based in israel where is gimlet i believe primary offices are in the eastern district i actually can't remember offhand where they are registered so i think one is a the fight i'm almost out of time but the final thing i would like to talk about is the similarity between the marks because the district court's analysis here was fundamentally is that the marks are fundamentally dissimilar except the two marks are orally identical which in the case of a  podcast is likely to be an important issue because the podcast name is going to be said aloud most of the time they both use double our rows and they're often going to be used in the context of mobile devices or on the internet where some of the small distinctions like the fact that the arrows point in opposite directions are going to be less salient at the summary judgment phase when you have to logos that are so similar i think it was error for the district court to find as it did that there was no similarity also point out that in the records the fact that in negotiations to create a life given that refused to give up the twitter handle for a file at the very least the logical inference from that is that given that was concerned about the possibility of confusion because there is no other reason  when they say they're going to retire they handle it give it over to reply all who wants to use it in the less they think there's some possibility of confusion in the internet space i think to enter those the findings of fact that this report entered on similarity in i think that's a great point or honor and especially in the context of you know mr simer grazes issues of confusion on twitter and such there are hundreds of companies out there that may want reply all as a twitter handle in fact there correctly granted summary judgment of no infringement finding that when walking through each the poll right factors in etail reply i'll simply failed to come forth with any evidence to show there's a likelihood confusion between the parties and that's the key here even though was the moving party on summary judgment that did not and does not relieve republican reparation from smiting evidence to substantiate its claims simply fail to do so the case that base comes onto a plane that's that believes it has a trademark registration and that registration gives them a right to exclude others from using the mark no matter how no matter what goods or services no matter the form that's simply not a law the district court cracked with all the poor it factors their software product it will publish emails when they were emailing each other and said take we publish these things on the web and obviously reply just of the ability to show e mail like conversations on the web also committed no resources towards advertising or marketing and promoting the mark or their saw or company and eileen it's let me ask you just a real simple question because i'm simple and that is is reply all is such a common who hasn't in the last week mistakenly hit the reply all button and been barest by reply all is sitting there looking at  how does that if i'm right does that fit into the analysis or not it does because i think it shows that more customers are consumers whoever they may be are going to be more particular and  questioning about which reply all they're going to you know if there's plenty of cases out there i'm talking about if you have a crowded field of marks obviously consumers are going to be more diligent in deciding which city they're actually interacting with or making purchases from same can be said here with reply all it's a common market and they can look at you and say hey actually which organization or company am i interacting with you're making purchases and that's similar here you have to noncompetitive and that also that difference is is made easier also by the way that different parties use the marks this report properly analyzed the similarities between the marks in a holistic view and how they're  the market issue that will help eliminate the likelihood of confusion between the parties because they're going to assume that the reply all is associated gimlet not what some other company the tagline also that's associated with the reply all mark makes this case even stronger says a show about the internet's reply of corporations obviously not putting on shows it's publishing e mails and allowing for people to publish emails on the web that's not a show so if it when consumers sees a reply all martha says a show about the internet they're obviously going to conclude that it must be some kind of show and look into it and see the pod cast of course which is different between the two and that really gets t these services are competitive they are in different contexts and different marks first there is the way that these things are distributed and seen with and consumed by the public or present there this won't simply be confused that way and there's simply been again a failure proof under a pile of rationed art show that even consumers if you're looking at them are going to associate the software even it's for publishing with a pod cast and vice versa steinberg talked about twitter and facebook put aside for the fact that those are very famous marks in the analysis of are a very strong and famous market it's completely different and we're talking about it we if even if reply like a twitter or facebook assuming there's going to association between the two of them there's just no evidence that anywhere and that point is most clear also in the bridging the gap factor of all right there's which district court also count to be in i'll simply didn't put forth any evidence that they're going to bridge the gap between their publishing software and going to a pod casting company that's on the element of pending for five years with many years of discovery before somebody doesn't grant despite reply all again didn't do the work and can't come forth with the evidence in a declaration the name of a person for deposition to actually whether it has a registration registered trademark at this point is irrelevant the initial issuance of the registration is relevant to the fact that it goes to a not only gimlets good faith obviously if the trademark office is going to agree that there's no likely between marks and properly issued them said oh we can so we can go ahead as far as you're concerned and decide the appeal one way or another without waiting for the outcome of the motion that's pending before the patent thank you your honor i give a very short i just want to discuss one issue raised by my adversary which is the idea that these compete in different channels because one is available through you know through i tunes or spotify whereas my client's product is generally found on the web i think that is something of a difference without distinction and i think this is fundamentally a matter of fact that the district court could and should have analyzed which is the extent to which you users are perceiving or it's a matter of fact as to how and when listeners interact with this i don't think it's been resolved on the record whether people who listen to podcasts are doing it exclusively or in a totally different context also know the gimlet does publish transcripts of its material publishes material on the web and i think consumers of media are tend to be relatively indifferent as to the particular format which they receive it but i think the broader point that i would like but i'm trying to address is just the idea that there's a meaningful distinction within the trademark law between someone going on to their phone opening their browser and looking at reply all content versus someone going onto their phone opening i tunes or spotify and going to sue given its content i don't think that's a meaningful distinction going to context of how consumers interact with media of the way we managed to pull this off and it's in no small part because technical expertise of people who support our operation so with that is rodriguez you can adjourn us and we'll a will and from the day