kenya and then all right you have the c v making all the argument i will be your i so i just wanted to find out if we were had any i understand it so each side has fifteen minutes and if you wish to reserve any you can let me know and i'll try to respect that if possible so you can state your name and order your honor garrett leach on behalf of the appellant all state and i would like to reserve two minutes of my time for rebuttal you all state and  put dr wise in the cars on products that are related to driver safety all stay put drive wise in the car seven years before a kid now all states driveways products promote driver safety through real time speeding alerts real time braking alerts when you break too hard it will send you a signal crash detection and other ways he is dr weiss product similarly promotes driver safety through rear cross traffic alerts lane departure alerts that have signals as well as for collision alerts are these identical certainly not are they similar we believe they are and we believe they're very similar in conducting the likelihood of confusion analysis the district court departed from this court's legal guidance on at least two primary factors yes i'm just going to kind of tell you because i'm going to ask the other side about this a little bit that what i'm struggling with here sure that  so but we know from the law that it's advisory correct and so as far as i could tell in my research the court isn't required to follow that and so i don't know why you would do it if you didn't have certain weight on it but that being said so if i look at this if i didn't have that advisory jury i don't think i'm confused here all right just in terms of a lot of the things that the district court said in terms of their it's a different place in the patent they do different things they they seem to me to be quite different and i don't think i would be confused that being said though i'm wondering you know if nine people that are just ordinary people and i'm assuming they're instructed on all of these if they say they're confused well we do know that yet to two things  know i know that the court right know it and they're and we're not arguing that that's in any way by night on the court i would hope we're sticking with the law but the court said because they the other side moved to strike the jury they said we don't need a jury here and the court said no the th circuit has said even though there's not damages here and so i don't need a jury the really the issue of likelihood of confusion should go to a jury and i'm going to keep the advisory jury and keep it on as an advisor jury i don't have to rely on it at the end of the day but i think it's important because i really think the jury needs to decide this question that's what he said if you go back and read his opinion on the motion strike the jury so we went through the jury trial we empaneled the jury we had them spend their time there we had the nine very laws jury didn't have a case because the judge erred on a couple of legal issues we don't think he erred on those in the jury instructions so that tells us when the law is correctly given to an ordinary observer you come out the right way now he changed the law in his conclusions in a couple of places and we think that led to this in here yes so there's really two places where we think the law is wrong and then we've got one clear factual error the two places where the law was wrong was in the proximity of the goods as opposed to following this court s the th circuit's law and that where you're supposed to look at whether the products are complimentary whether they're sold to the same class of customers and whether the products are similar in function the court didn't do that instead the court looked at whether the products  similar but were identical looked whether or not the two companies were direct competitors now just to be clear dr wise isn't a brand of a car and it isn't a type of insurance they're both offsets of that the two company's profits but it doesn't matter you don't look at the primary directive this court has said that and then finally what this court did or which which it did several places which was unfortunate is it looked at where kia tried to register their trademark so if you try to register their trademark for vehicles and let's be clear again did not does not use driveways on the name of the vehicle you can't go buy a key a dr weiss car there is no such thing so the fact that they try to register in that particular trademark classification should have no bearing that's not how they're using it in commerce but yet the court put a lot of weight on that particular fact i guess the crime i guess what if if that's a legal error or if that's just a different way of looking at things because when you're when you're in your challenge of the district courts related proximity of the goods and the court didn't do that the court mentioned it but then it went off and looked at other factors you have to look at these three factors i don't think there's any question in the court didn't say there was and that these goods are complimentary having safety alerts in a car or complimentary to one another i don't think there's any question that it's the number two that it's the same class of purchasers if you buy a car you have to buy car insurance it's the same class of purchasers it isn't really because when you you know i always go into it whenever i get my car i go in the dealership there's certain things that i know that i like because that like the little things that go p p p when you're going to move over into someone because i've gone p p p enough times that i verified it i have avoided it has been safe for me and you know certain are when i back up my car i'll buy a jolt or you know keep me from running into things all of those things i never think about where it's coming from and i'm not thinking about i'm going to cut my insurance rates i'm like well i would just like to be safe and not have an accident and i drive thirty thousand miles a year and so so i'm not thinking you know why isn't that in your exactly the kind of consumer we're worried about your sophisticated buyer but there's a lot but they're not they're not the same product they're not identical but the same you're not getting the same product if you buy what you sell versus what key is sells you're not going to get the same beep beep you're not getting the exact identical proximity analysis that you argue they made legal where the court concluded that they were not closely related to the court yet but the reasons the court concluded they were not closely related were based on this trademark registration were based on the fact that they weren't identical right that's not what the law says the law says they don't need to be identical is bossy that he could not you used those factors in making that determination the law is clear that these are the three factors the th circuit required ossie you can look at where the trademark was rigid that seems to me to sleep sleep craft says these are the three factors you look f proxima the goods it doesn't say and if you don't you're in legal error but i don't know that any case says these are the three factors if you don't follow them  academy of motion picture as well as the recent adidas case that say when one party knowingly adopts a mark somewhere to another reviewing courts presume that the defendant will complicate it's purpose and then more recently in the stone creek case i believe your honor was on  after becoming aware of all states mark here proceeded with plans to use the dr wise mark because it believed there would be no consumer confusion given that all state is an insurance company not a car company so i mean that's how the we're making in some creek is you can't ignore the presumption yes the court can come back and say you've rebutted the presumption by doing these things the court didn't do that here the court said we're just we're not going to look at the presumption we're going to put this back on all state to prove there was deception to the public and they put the burden on us to do that we think that's legal or it had to at least assess and analyze the presumption which it did not do the courts say anywhere why he thought the jury was confused so quickly i mean you know came to the confusion no he did it didn't is just just an answer a question that was really the whole leaky films kate case and this is a quote the basic premise that a trademark provides protection only when the defendant uses the mark on directly competing goods identical goods is no longer good law although this notion survived into the early one thousand nine hundred it has long been superseded that stanch your question on that one particular point that's a th circuit case i'll reserve t that i find it odd that the district court impaneled an advisory jury apparently for the sole purpose of answering whether there is a likelihood of confusion and then the court answered that question contrary to what do you now animists conclusion of the jury and without explaining why it was ruling contrary to the jury do you have an explanation for what happened here i do not have an explanation for what the district court's rationale was back in the why did the jury come to this conclusion if you know i basically said to be a pal and hey if i were to cite in this case i don't think i'd be confused but then confusion is one of those things it's not like rocket science i mean i think the average person is probably the best person to say whether they're confused or not as opposed to judges get confused for a lot of reasons that not usually you know i mean really you're talking about it the average person that's in there when they get confused well so my thoughts are as follows st of all i think it's a mistake to characterize the advisory jury's decision here as nine consumers telling you they were confused by the mark that's not what they were asked instead they were given fairly detailed jury instructions and they were asked to answer a mixed question of fact and law which we know from the levi strauss decision which was on violent by this court in one thousand nine hundred and five is a particularly tricky multi factor test which is interested to the district judge not to the jury and this look when i started by saying i can't tell you why judge otero impanel the jury i think i can tell this court what you should do with the advisory jury's decision and that is nothing and that's for two reason lose so can it kind of make a point though in this seems to be what we should do with it and it seems to be all states best argument is that there were legal errors it does support seems to support their conclusion that there may have been legal errors given to the jury compared to what he owed money ruled on and so while we can't do anything with it i think it does make us want to look at this a little more closely and i'd be interested if you could address these legal errors that have been you know been claimed by all state in whether you agree with those or not certain there were illegal errors that advisory jury could be said that's why they weren't harmless certainly so  if i may i'm going to address your honor's question in just a moment but before i do the verdict form here was a single question it was it called for an ultimate conclusion on the mix question of fact of law whether they had met their burden to  show proponents of the evidence that there was a likelihood of consumer confuse i can imagine a verdict form which may have been more useful to this court for example if there were discrete questions of fact which were put to the jury for example how did they find key is intent was an intent to deceive or was it something more innocuous and of course we can go through all the night of the sleep craft fact you're just saying when there was a special verdict form or just a verdict form i mean the one under the law we can't consider either one even if it had been specific we still couldn't consider it but that doesn't mean that we can't look at it and say well wait a nd is there something here that we're missing because that you know they got it and maybe the answer is what all states proposed which is there was legal or hair shirt so if i may let me jump into the legal air which almost all of the legal air arguments go to factor three the proximity analysis i think the most notable exception is the presumption of intent and i'll get to that next on factor three the relatedness or proximity inquiry all state argues that there were a number of errors number one they argue that judge otero committed an error when he focused on direct competition between our product and their service and that's wrong a few ways number one judge otero's recitation of the law was unquestionably correct in paragraph twenty six dollars of his conclusions of law he wrote quote a false statement he had do not compete to any extent the likelihood of confusion would be remote or at least all state would bear the heavy burden of demonstrating that consumers were likely to be confused as to source or affiliation if this court reads the brookfield decision at page one thousand and fifty six dollars it is the exact same standard in fact with some of the same turns of phrase number two all state nonetheless argues that this focus on competition was legal error because riordan and palmer wonderful inform us that they it is not necessary to show direct competition in order to show proximity for factor three but the holding of brookfield that a lack of competition makes it harder to show proximity is not only not inconsistent with riordan and palm wonderful in fact the palm wonderful and riordan follow from brookfield if the holding of this court is that a lack of direct competition makes it harder to show proximity under factor three then it must be the case that showing direct competition is not strictly speaking required but aside from the law the most important  countervailing argument here the most persuasive is from judge otero zone writing he did not confined his analysis to one of direct competition he looked at differences in the intended purposes or use of our product versus their service that's in the conclusions of law paragraph twenty eight for example allstate was primarily a survey i'm quoting here primarily a service monitoring driving performance and offering incentives for safe driving behavior he also looked at differences in the implementation of record the way the consumer surveys are used and of course there was no consumer survey a deuced in this case it is not necessary to debate about whether you have two months versus three months or nine months of an allstate desk in a key a dealership in twenty nine dollars odd locations around the united states the suggestion that we needed an empirical study rather than a consumer survey to show evidence of actual confusion i think puts this court on a fool's errand especially given the record in judge otero's not clearly erroneous fact by needs if i may in the rest of judge otero's fact findings and particular paragraphs twenty one through thirty seven in the conclusions of law paragraphs from the jury instruction is because they repeatedly argue that although his conclusions of law accurately properly recite the law of this circuit he then if you look at what he actually did didn't follow the law and that you know brings us back to the standard of review here since levi strauss on this court the th circuit has been very very clear that the likelihood of confusion is a mix question of fact a law which is governed by a clearly erroneous review the one exception is if there is a statement of law by the district judge that is subject to a dead novo review now if you read judge otero's opinion here every time by just putting in quotes of why and then misapplying if that's what happened i completely agree with your honor but the distinction is if it's to denote a review of a statement of law if the subsequent question is did the district court then apply the law properly for a multi factor sleep craft inquiry that is not of the novo review that's a clearly erroneous review well it isn't less and less we've said you can't actually that's what my my question to all can consider these factors and those and what he did consider was not in compassed within those factors that seems to me to be it would seem to me to be a misapplication of the law the we would be able to review dunno sure i think your hon or may be alluding to the consideration of the international registration class issue well i think that was one of them but but also that you know the comparison i mean everything that falls within the proximity of the goods is what i understand sure so why for example the district court said that all states dr wise was a service and key as dr weiss was a product and so what makes one a service and the other a product couldn't we just as easily label them both a product and both the service and if the district court was wrong to label one of service and the other a product with that undermine the courts overall conclusion if this court made a decision that judge otero's finding that allstate had a service and we had a product was clearly erroneous yes i think that would absolutely factor into your honour's decision however i think that gives short change to judge otero's findings here it wasn't just product versus service it was also that there is a passive usage based monitoring service which has the benefit of putting this all if i'm understanding your argument you're putting a lot here and then the things you're saying are clear you're sort that the district court emphasize a stark difference in price between the two dollars products and but the prices already considered as part of another factor that was it was that was when he was saying the relatedness of goods said there's a stark difference but then the prices are already considered as part of another factor the degree of care consumers are likely to exercise so do we have precedents suggesting the price comparison is relevant to more than one dollar of the sleep graph factors could that be legal could be although i would have a hard time imagining that i'm not aware of any case law thirty cited by either side to ascribe legally or to that and more importantly in this i can keep going on the failure to consider the complimentary issue with the class of purchasers  the overlapping features versus similarity sleep craft factor three asks the relatedness or proximity of the goods in paragraph twenty one through thirty seven of the fact findings and two thousand five hundred and thirty five the conclusions of law judge otero goes through that analysis in some detail just to take your honour's example the fact that all states smartphone monitoring app which has the benefit of possibly reducing your premiums  is free and the fact that kiya is offering a hardware software built into the car one dollar to three thousand dollars option that you have to purchase when you buy the car that speaks to the class of purchasers that also speaks to the complementary or lack of complementary nature of the products and i have to say i heard the exchange earlier about whether these products are complementary that they absolutely are not and not only did judge otero not fail to consider the complementary issue we considered it but his finding is one that all state doesn't like he found that all states dr wise monitoring app was complementary to an insurance policy he found that key is dr wise autonomous and semi autonomous vehicle control system was complementary to the purchase of a car that makes perfect sense a piece of chalk is complementary to your purchase of a pool cue a ski binding is complimentary to your purchase  ski but whether there's any complimentary relationship between our clients respective offerings doesn't make any sense advisory jury if all right i'm looking at dr weiss and one's got a space on the other  ok so it's not even like dr right dr you know it's like just the case if the jury looked at that and said ok at the space it's just that that doesn't that doesn't help at all and they looked at the same listened to the same testimony that judge of tara listened to and said yeah i think he did this on purpose that they wanted to confuse people and they you know all of that don't know your honor i think that doesn't give credence to the sleep craft multi factor inquiry well well but if i'm trying to understand what the jury did if they if they basically looked at it that way and said those are exactly the same names there's only a space and we and we think that keanu what it you know that he had a bad intent knew what it was doing and wanted to with that could that be an explanation for how they all agreed that it was you're saying that's that's what the advisory jury did here and that's because they were given a single large overarching question and the question of intent is a particular factual question imbedded with the many sweet craft factors that then that brings me to a nice place to then and i am reading from him he did not disregard that presumption he in fact made fact findings which made the presumption that it did not carry the day quote there is no dispute the q was fully aware of all state's trademark registration and use of the time it adopted the driveway's name here however there is no need for the court to presume or infer as to key is intent in selecting the mark he independently derived the name and he goes on from there citing the record in the case and he has not clearly erroneous fact findings in arguing until there is a which which number then is paragraph thirty eight of the conclusions of law that is record evidence page nineteen your honor and i actually when i was preparing for this argument a part of me thought that allstate may have just simply misunderstood the writing of of the judge it's one thing to say there's a  presumption of intent but here i don't need that presumption which is to say i am disregarding it i think that's a misreading of what judge otero did he acknowledge the presumption and then he went straight to the evidence and he made his finding about not having an intent to deceive consumers my time thank you for the court's attention adopted the mark that's the key point he misses where he's looking at when do i apply the presumption he's saying i don't have to play the presumption because they came up with it on their own the law is if they adopted it knowing about it you have to apply the presumption we don't believe you did that on the three factors on the proximity i just want to i want to read you a couple of quotes and this is from judge of taro both products both driveways as function as ways to improve driver safety that's in the record of e r six hundred and ninety one both are in some way view mirror is designed to protect safety but it doesn't keep at me when i'm doing something i should have them but i'm just saying it feels like you that sort of a selected quote but anyway yeah and i will just just to compare  the th circuit cases in this yes there are differences these are not identical and i'm not trying to argue they are but i submit that other th circuit cases that found that the products were proximate such as dream works were science fiction conventions were found the same as movie studios or team gordon were racing bicycles were similar to energy drinks or fleishman were beer was considered the same as whiskey these these are no further apart i'm not saying that this is a tire and a rearview mirror i'm saying these are two things that beep that you when you're doing something unsafe in a car and i think there's a real in the jury the visor jury agreed with us there's a real concern that maybe somebody's less sophisticated we had ten people in that courtroom who decided this issue nine of them went our way one of them went their way and i think the person that went their way is an extraordinary observer i think nine normal consumers who may not have the education level three authority that's another difference to altruistic on this but there is concern that some is going to get in a car and think they have one thing and not the other because they see dr weiss in their cars they buy a dr wise piece and think they have allstate insurance and they call c ask use to who's trying to get my arms around you know really what you're trying to say here who's i see my time's up so that's who's going to be confused this isn't the only one it's potentially going to be confused is someone who buys a key someone that buys a kiya and or someone who buys allstate insurance so somebody to buy allstate insurance who doesn't have a key is going to be confused well because let's say for example you see it on t v the key is got dr weiss or they go to a deal and they look at a kid before they go and buy a honda and they sell their driveways things pretty neat oh i  get that through all say well it's free i'm going to take that now i've got now i've got dr x fusion there well no there is confusion if they think they're getting the same features that they saw when they went into that showroom and saw those neat features on that key that they test drove i mean you're putting both companies are putting key in the automobile and it seems to me key is going to get you business well that's not what we want trademark law and we don't want that confusion that's causing business and it's funny sixty one of the marquee people also said well maybe if we get