that the moody blues tore was was promoted and started that moody blues tour we have evidence was was promoted using the concert west mark  question how was it that your clients have ownership of this mark you argue that you got it through a family trust trust and it's on the spirit of that th and any time you want an associates became part of the trust at that point mr mckenzie explains that he considered tom you want an associates no longer a viable entity fact he wrote a letter to the moody blues tour organizer that the funds from that taurus are now be paid directly to the trust who owns the mark now the trust  mark referred to not initially in the district court focused on the fact that it was not initially referred to but we've got testimony from three individuals who testified that after that initial  asset that that corporation no longer existed and that was the trust at that point that operated the business we know for a fact that business continued we know that the moody blues tore continued we know that income was gen by the trust no matter how i got it because at that point the mark was not registered so it didn't get it from th and a it had it was using it was generating income it became the trust mark the trust generated income from that mark distributed and it was tina and don don donald that ultimately receive the assets from that trust so the fact that tina's initial schedule may not have listed the trust doesn't necessarily as a matter of law negate the fact fact at that point with respect to whether that mark was an asset of the trust and that's the first reason why the summary judgment should be reversed a second reason why the summary let me ask you this these by mr mckenzie to donald you know what the award for rose out of you i understand correctly arose out of the breach of an agreement have the mark as an asset after the trust was that the solved tina and donald used the mark on their own to promote concerts and therefore and to promote events and therefore they became the common law owner of the mark regardless of whether their fathers had it at some point th and they had it at some point or any of his corporations had it that that mark was unregistered and became owned by donald and seen that point through their own opponent argue that some money actually went into an account called concerts where there's no evidence that the ninety's went into the account called conscious west that i'm aware of in the records during one thousand nine hundred three or at any other time there might be evidence prior to nine hundred ninety i mean after that correct all right after december thirty one nine hundred ninety two on i three called no evidence of that so we've got a corporation that apparently on the market dissolves that doesn't reinstate  states affirmatively that that the assets don't include any mark that is correct here they feel it's attempted to avoid the impact of conscious west bank going out of business by amending knowledge of the name if you will from some former employer use of toms is that right yes the former employees pagong aware and john mcglynn had previously worked for one of the predecessor companies under tom hulett many years before they were familiar with the name and the reputation that it had in the entertainment industry absolutely and they began using the name concerts west yes they commenced their use bankruptcy protection says he didn't own intellectual property rights that that's key because the laws would require him to disclose any ownership of the mark in the trust as well as thank lipsey petition and he failed to do that which indicate penalty of perjury that he did not and nor did the thrust on them are there has been a suggestion that's really the clarence indicated that bill mckenzie told them that the conscious west mark was somehow in the trust the evidence has been concerts west inc had been transferred to the trust now we have no evidence that really occurred but even if it did occur the corporation was the owner of the mark the corporation had gone out of business because you as a lawyer kno conscious west bank and the services you rendered for them was he called and arranged for the company to be established and he also provided them with tax services he was not an employee an officer director an owner of the new con reinstate congress was saying which had long since been dissolved and also that he should use what little assets were left to run businesses when the person who was the business was no longer around in any event the time in which the hewlett should have discovered that mr mckinsey was not doing that was pretty quickly after he took over as the trustee and at a minimum by the time he sued them in washington hundred ninety eight either way if you run the statute of limitations from the time he submitted his final accounting in december of ninety five or you run it from the time in which he filed a lawsuit against the hewlett either way any claim they have against have any of the activities that one would expect when you run a business he testified that he didn't have a business address he didn't have a bank account he never made money he didn't advertise he just anything you would imagine didn't was limited started using it in one thousand nine hundred eight they have to come in with more than just their self serving conclusory declarations that say they use the mark concerts was in some completely undefined way they have no statement that they used it as a source identifier they have no statement that they used the name in the sale or advertisement of a service and they have no evidence that they performed any service whatsoever and on top of that they have not one piece of paper not one invoice not one advertisement not one business card not one contract they have absolutely nothing produced in discovery or presented t underlying court or to your honor's that would corroborate their statement that they have indeed used this mark in a bona fide way that is simply insufficient to overcome and disputed evidence that we have presented that they did not use the only dog i have is that i think that the lower court if anything should have granted more fees but that's not before your your honour's and if you have any questions about the fees that work granted i be happy to answer them thank you very much there is evidence that concert west was used in connection with the moody blues tor again he did deposition of judy wilson and you testified earlier that you believe that concert wes received money connection with the moody blues tours rock on tours