the district court's decision and refusal to disgorge discount party buses profits was an error for three reasons st the district court in a properly placed the burden of proof to establish the extent of discount party buses unjust in appropriately concluded that discount party buses vigilante attempt to steal safeway transit's trademarks its goodwill and its websites is not the type of conduct that the lanham act is decide to deter likewise the district court concluding that this is not an exceptional case in two ways it failed to consider the numerous abuses by discount party bus leading up to and continuing through the litigation and it failed to properly evaluate the business organizations and the fact that the defendant here originally started this business and using these names and these parties have argued back and forth over and i don't know what's what with that what's wrong with the court taking into account the long term interaction of these entities and the valuations of cross violations and their har business approach it is exactly that equity does have a balance and there are rules that apply specifically what are the specific boundaries say the district court breached here absolutely and give me the authority for the district court and looking back in accusing safeway transit of having its own bad acts similarly applies an unclean hands to feds without actually saying as unclean hands now unclean hands as an equitable defense has a strict application specifically in the trademark infringement context it must be egregious behavior that is directly related to the cause of action now courts including the th circuit have said that means that the behavior must specifically involve the trademark issue and that's the japan telecom case but it must be directly related to the to the merits of the cause of action and it must be particularly egregious and the trial court made no equity is not limitless and if there is the equitable defense of unclean hands the trial court's position if the trial court were correct in just saying they're not as nice you know they're not the nicest actor but it doesn't ri in other words are some good things that safeway transit had in its favor and there's some bad things that safeway transit had you know against them and i got to balance that out and figure out what where the equity stand that seems to me to be different than try to establish an absolute fact  it is different than establishing the defense of unclean hands but that's exactly what courts have been admonished not to do when when applying the unclean hands defense this is not just a challenge to see who is the best person and clean hands that sets a high bar so that people don't come to court and just fight over who is the best person now in in this particular case another way to balance the equity use is to consider multiple factors that courts across the country have have recognized as equitable factors rd th and th circuits have recognized six factors and the district of minnesota in b and b hardware versus harkness recently also evaluated those six factors and none of those factors questions whether or district court was doing the principles of accurate include weighing specific factors providing a clear understanding of how those factors might apply in a particular case and the district court in this case didn't make any findings on any factors did not say whether or not any equitable fences specifically applied now the conduct that your honor identified and was discussed briefly at the trial court wasn't actually tried at the trial court and for a very good reason it was subject to subtle that case and then use that same conduct as a justification to do whatever it rots and that's that's against the principles of race judicata and that is against the principles of balancing the equities and applying  from affirmative defenses of on clay what about the so with that with the discouragement profits issue there was the issue of deterrence and i will carry that the findings of the district court are sloppy thera they are hard to parse they're not exhaustive but the district court did find over the course of about two pages of its order that it believes that discount party bought fact that it had the right to use the trademarks and it was an honest mistake and it seems to me that that support the district court's decision that safeway is not an entitle to disgorge kind of profits it's not clear that the trial court actually made that finding it made it made a statement it was either or it was either that it thought it had  it could do so or it just wanted to get back at safeway tried and i understand that that's why i say it's not very very good but then i think the district court went on what went on to say about two pages later that it was an honest mistake by the owner of discount party b eight different contacts and so that that to me at least leads me to believe that the district court made that finding at some point it's not clear whether the district court made that fine and i agree that it is implied the th finding to the extent the reference you're talking about is a finding that discount part of us had a genuine belief it could use those marks that's not supported by any evidence in the record at trial and this is cited in the  partly why the trial court said that to the extent there were any rights ever for misuse and prior to two thousand and nine it was abandoned and i also testified that he was advised by counsel to file trademark registration so there is no evidence that  of us and mr fernandez thought he could use it his testimony and the only evidence in the record indicates that he wanted to file these trademark registrations to stop safely transit from using the marks and the website knew they had been using for the past five or six years so to the extent that that statement would be considered a finding that say that discount part of us had that genuine belief it's not supported by any evidence w record now as i indicated the trial court part of the trial court's basis for declining to discourse of profits was that the trial court said safeway transit's failed to present any evidence or argument the discount party bus ones unjustly that it is the burden of proof on the infringer to show that they made no money from the infringement in th circuit in o b or nestor stated it very succinctly that the burden is on the the infringer to prove that the infringement there was no evidence presented but there was evidence presented it wasn't it wasn't exhaustive evidence but that was due to discovery abuses at trial say for transit did we disagree i simply don't see how that transferred a burden of proof i'm sorry will we disagree i don't see how that transferred the burden of proof is to use your phrase the burden of proof is transferred once safely transit established a direct competition and infringement that discount party bus made money from the infringement if presented evidence that the infringing website ran for eight months that it was exclusively promoted through social media that it was run during particularly busy season that mr fernandez told the creator of the website the web site's getting great views and clicks and it proved that discount part of us made money during that period of time to the extent it is safe which brands its burden to prove that just come part of us made money a many cases that is the appropriate remedy when for example the parties aren't in direct competition when in front of the same product or in the same geographic region or the marks that issue are necessarily identical but th circuit has recognized that in cases like this where the court is convinced that the infringing party has ceased all use anyway as in masters v u h s an injunction is a remedy in name  only and makes it insufficient as a matter of law in order to remand to discourse the prophetess so in this case because of the direct infringement direct competition and because the trial court was convinced that  part of us now that it had been caught wasn't going to do it again and injunction was not sufficient to satisfy their  fatalities the circumstances of abuse during litigation process can form the basis of a finding of an exceptional case and the trial court was presented with ample evidence that discount party bus had been continuously in excluding exclusively using both marks through two thousand and fourteen when mr fernandez admitted he'd stopped all use in two thousand and nine used those registrations an attempt through i can for transits websites despite the fact that mr fernando said he never intended to use it let me ask you about the the the a legit litigation abuses the way i view it and you can correct me if i'm wrong very relevant i think  to the attorney fees issue and whether it's an exceptional circumstance i don't see it it's particularly relevant to the profits issue or that or the damages issue because it doesn't fall into that unjust enrichment deterrence that it really doesn't fit into any of those categories am i right about that that you're primarily are you saying that on attorneys fees primarily on attorneys fees but it is also the type of conduct that should be deterred it is to the extent it is a willful infringement the type of conduct that mr fernandez engaged in good morning your honor sir and may i please the court judging witness credibility is the hallmark function of a district court and a bench trial and that's exactly what the district court did here the court ruched mr fernandez's demeanor and listen to his tone as he testified during a direct examination and two separate cross examinations from safeway the court found that mr fernandez's genuine belief that he could resume use of the marks explain the infringement how the court also found mr fernandez was wrong about that but it credited the sincerity of that belief and found he did not act in bad faith on this record your honour's the district court did not abuse its discretion and denying  and attorney's fees the standard of review for those denials is abuse of discretion under this court's cases inquest communications minnesota pet breeders and sturgis turning to the st point after but two of them explain the law and then the rd one the only thing we have here is we have it could have been for revenge the use of the marks or it could have been because he had a misunderstanding of what whether he had a right to use those marks that's not really much of a finding that doesn't really facilitate appellate review what do we do with your honor i think what you do with that is you look and see that that is a weighing of two possible rationale that he's looking at here and maybe it's a close case on those that's fine but if you look at the very next sentence that says i cannot condone or the district court cannot condone retaliation and does not condone retaliation and finds that an injunction is sufficient here i think that is cannot conclude that mr fernando's deliberately acted unlawfully given the court's factual finding that discount party boss used the terms st so that that is clearly the district court crediting that former belief ultimately finding that ye s i'm not going to the courts are not going to find bad faith because they use the term st and joining and believe he was he was entitled to do that so that takes care of deterrence but then opposing counsel makes the point that when you get to damages address that any any further than that in terms of unjust enrichment what the court found was that safeway done just enough to establish likelihood of confusion but it didn't do much more than that and that's well supported in the record here as it admits on in its opening brief on pages twenty one and fifty three it believed likelihood of confusion was conclusively established and didn't put forward any evidence any additional evidence on that a trial and it did so at its own peril the court looking at that evidence simply inferred reasonably we believe that there was only minimal confusion and when you look at that there was no actual confusion established no expert testimony  no consumer testimony not a not a single consumer survey nothing like that to prove likelihood of confusion safely relied simply on inferences and the inference here was that it was only weeks now would he have to prove it or did you have to prove the t number one hundred and seven i believe page twenty two and a potion of the trial transcript if you look at both of those were alba of it so there is a recitation of the three possible rationale and then the only one that could masters did not offer any expert testimony or sorry masters did offer expert testimony to establish unjust enrichment at trial and i think perhaps most importantly here this court was able to notice that masters offered a theory of unjust enrichment to the jury at the district court compare all those factors to what we have here a single sentence saying three apply honor just turning turning briefly to the final rationale deterrence it's worth noting that the district court way weighed the facts and this ultimately determine this ultimately turned on the credibility determination of mr fernandez and the district court was in the best position to do that i'd also like to point out that the i'd also like to note that the dischord did in fact grant the preferred remedy of the lanham act a permanent injunction the district court did not abuse its discretion in denying attorney's fees this court adopted this court in sturgis adopted the octane fitness standard for determining whether a case is exceptional and whether it stands out with respect to the sub the litigating positions or the litigation conduct the court must consider the totality of the circumstances and it's allowed to consider consideration sorry it's allowed to view considerations like deterrence and for th court already decided to turn in the disclosure in a profits analysis there was no need to deter it beyond the preferred remedy of the lanham act on this on the on the attorney fees issue i'm  actually having a little bit more trouble parsing the district court's order i understand the point and i think it's you're probably right it becomes a finding that this was an innocent and frenchman he thought he had he thought he should you know could use the marks but the two things that i think are missing and you know it least make it a close question as to remain and for further findings we have bad acts supposedly that are referred to in this is the the  right in the district court's order we have bad acts but the district doesn't tell us what they are so we're left figuring out what the bad acts possibly could have been on safeways part and then we also have  issue of the litigation abuses which is nowhere mentioned it was clear that safely transit raised it but it's nowhere mention in the district court's order it's not as if we know if the district court rejected it actually or just didn't think it was important what do we do with that this is this is safeway use domain names close to discount party bus knowingly so those are in there however i would say looking at looking at what the district court did that's sort of it doesn't belabor that aspect i don't think it gave that it considered it but it didn't give it that much weight the bulk of its analysis is on mr fernandez's and ted and it's entirely within the court's discretion to once it considers that it needs to consider to give weight to certain factors and not but that the other party raised them it's ok not to mention those in the order your honor if it's not ok it's harmless error here because nothing stood out with respect to those purported discovery abuses that safeway ha identified in the litigation is the voluntary dismissal of a counter claim which is provided for in the federal rules of civil procedure rule forty one dollars and a motion to compel that was partially granted and partially denied that's not an case if you look at the cases that it cites that talk about inappropriate litigation conduct i believe the case is take take take rather is the one that they rely on the oppressive litigation conduct at issue there was the defendant was threatening the judges and threatening the plaintive with violence now i'm not saying that's always what's needed but that's the kind of exceptional case we're talking about here not a partially granted partially denied this case ultimately turned on a finding of mr fernandez credibility and the district court was in the best position to make that credibility terminations so far as arguments amount to reload a gating mr fernandez's credibility on appeal thank you i'd like to address two points made on a bottle the st is the litigation misconduct out ask this court to pay close attention to the urban outfitters case out of the rd circuit where in that case the trial court considered discovery g case but witnesses that were lying and potentially obscuring or hiding evidence and it reminded to the district court to consider those without any sort of outcome determination trial court on remand did consider the additional litigation abuses those witnesses lying and hiding evidence concluded it was exceptional which was then affirmed on a subsequent that's what we're talking about here that type of conduct it's not merely what was the specific conduct here the names and then after being sued perpetuating that fraud in its answer after being sued instead of abandoning the trademark registration for my party bus again this is a registration that mr fernandez testified he did not intend to use the mark when he filed the registration and sort of abandoning it he submitted a supplemental specimen half the trial court to declare that the registrations were valid to transfer the domain names to him in the litigation he denied affiliation with the infringing web site denied in his answer that he owned the website in written discovery never never identified it or social media accounts as his own in fact said he didn't have anything to do with it it was only through rd party discovery that safer transit was able to uncover that affiliation but that doesn't sound like i mean that's bad behavior but it doesn't sound to me like discovery abuses in the sense of just not answering discovery at all being late  answering it i guess was rd party discovery so you're saying that all of a lot of this happened during discovery between safely transit and discount party bus yes it was it was discovery but it was also using intent the trial court's findings don't say how it came to the conclusion that he had a good faith belief he never testified he had that belief trial court implied that it was based on some unsound legal advice we don't know what that l