yeah right so i footy over and just as the may please the court the element spent twenty five pages in its brief talking about why it didn't get commit misconduct in only two full page talking about prejudice but this case is about this case is about prejudice but primarily that the elements argued that it's misconduct wasn't the same as a misconduct and bird versus glacier so  what's focus on the misconduct issue as i understand it the misconduct is saying three times referring three times in a closing argument to things outside the record and probably inaccurately referring to was that fair and your you both your side objects to the second statement only correct that's correct you're not worried about waiver for the moment the judge sustains the objection and then you later file a new trial motion the judge says he had they were all neat there were their stats misconduct maybe i didn't report them to the bar but i don't think it was enough to upset the jury verdict how do we review that determination well we  question is the question is how do we review the district court's determination that despite the misconduct of your opponents a new trial was not warranted it was abuse of discretion and it's clear error the fact that oh you had an jury instruction why why did this this particular misconduct which was referencing a document that they had moved to keep out of evidence and making it seem like your client had taken two different positions when in fact it was their client to take it to a different positions why did that cynically in fact the jury's verdict the us of deceit they accused us of taking one position public publicly a position that was contrary to the to visit and that we're asking the jury to decide and they accused of of keeping that that from that from the the jury looked at the jury i mean look at the end of the day the jury looked at these two bottles and determined if they were so so so similar as to be traitorous violation i probably would have come out the other way but that's why we have juries but the jury instructions  were were good and accurate the judge and a jury was properly instructed it this is not a this is not a summary judgment case it's not a jam oh al case the jury reached their own conclusion perhaps but that happens to juries all the time i'm not by relying on the shape they were talking about opaque versus clear down there it was a shape only they also the only other but you were you were you were allowed to argue about what they said in mexico yes yes around so did you you heard all that heard some stuff it shouldn't have heard and judge orders question is the one that troubles me too so why is it that we should conclude that a judge should watch the whole trial made appropriate rulings on everything in your view except a new  again i just go back to you so when you say we had the case when you felt like you had the case when and then this argument was made is that what you're saying yes just wardlow we had it we had an admission by elements everything in mexico on the basis of of the seminal case for faith for the fame or territoriality doctrine which is you can't rely on x on decisions made and whether to trademarks or existing in another country so you say you had you had them in mexico saying go seize their stuff it's the same as ours that's what they were last that's what that's what the right mix and then you get you got the judge excluded the response the right to know your honor we didn't judge the judge only allowed the presentation of that not the response right yes your honor of that that was not our motion that was on i understand i understand but so so what happened was the jury heard that they said in mexico they're the same go season yes and say what they weren't supposed to hear in summation was the response which said you shouldn't seize them for various reasons well as various reasons are important though i understand that's why the judge kept it out i think i think they committed decision that's why the court the fight divided these so if you rely on a decision it was simply debts while you eat a little misleading to say it was their motion you wanted to introduce their admission mexico correct oh yes you're right and they said no you shouldn't say well it was all on their motion they made a motion because you wanted to reduce this information correct i think it's worth looking at that because that's not that they take their motion was depended upon you cannot rely on decisions made i understand i don't see what the judge's ruling was my point only point was you're the one who said who because you sought to introduce what they said in mexico that's what gave rise to the motion in limi so wasn't it they brought this issue up it was b is a response evidence you want to put it yes your honor and getting back to just word last question regarding the that the why do we think we won in addition to the you know claiming that the shape is enough which what do we do with the competing they're doing experts if you will this is the doing experts one their expert says and we can all find an expert who can say anything in your expert says something else but their expert says no these days is the market for tequila ways different in the market for vide can consumers are not likely to be confused and and the fact that the face it did looks like a day of death skull as opposed to regular skull makes it distinctive and it's the experts support their side there's some evidence there what is that evidence legally irrelevant no it's not legally irrelevant it's just it's over it's over written by that by the test by the admission but if it's overridden then it's not a j m  actually a but i'm a slightly different question i think your case was more powerful than there is on i'm leaving the record i'm perplexed why you lost it and why one of the questions just maybe it's the misconduct one but now you're arguing it's a g m o l issue it at your question related to actual confusion in the surveys that you know that your case law also says that when you're looking at the secret factors actual confusion is really really hard to find oftentimes it doesn't trickle  to you that people are complaining that they're confused but they don't that doesn't make it true that you have to go to the manufacturer the producer that you are going to their attention so it isn't a factor that you need to have all times and so this was a manufacturer we have something more and they're arguing that we ought to apply the patent law cases and require less of an extraordinary showing that we did before but even under the lowers standard that they advocate isn't this just strikes me as  got two bottles that look pretty much alike i can't believe that it's unreasonable for for one side to see the overhead i wouldn't believe it was unreasonable if they brought a suit against you know either way so i'm having a hard time figuring out how tried this case how would you do it differently you know that hearing is what i thought you know if you were to retry this case having to do it differently we wouldn't do it differently your honor if this was we were the victims we've the victim of misconduct you can't you can't tell the jury that we admitted to something that we're asking in the country position of and you can't tell them that we kept that from you that's unfair it's fundamentally unfair we denied a fair trial time ten minutes apiece this case doesn't valving appeal and a cross appeal with regard to the appeal it's our view that the judgment must be affirmed for one of the reasons that was discussed with  my opponent mr weber and that is specifically that the trial court decision that the perceived misconduct did not permeate the proceedings is  unassailable this is something that took place in three mentions during a closing does it have to permeate the proceedings what if the quality as judge wardlaw asked of the misconduct is such and what i  anybody would say is at least a close case what if the one of the quality of the misconduct is such that it looks to us like it it probably affected the jury's verdict in the abstract i think his honor is correct if there was a case it's serious that it nonetheless requires a new trial and i appreciate the question because we firmly believe that there was no misconduct you're going to hard time with me on that one but i have i am and i think i'd have a hard time if you had sat on the jury panel trying to convince you to give a plaintiff a defense verdict but you know what to tell me why after the after the judge had said i'm going to exclude from evidence anything but the mexico complaint various reasons that i don't need to get into right now which is just to with the judge's ruling the judge said i'll exclude everything except the complaint that everything is up to complain and then during trial we brought a motion to revisit that because we then saw it during the trial and during cross examination he testified that global went down to mexico and that what was in the petition remember the petition is the right and i've read his i've read his testimony he said i don't know what was in the response down there why i'm i'm pretty sure we were posted that's what he says he didn't say those exact words but i've got i've got his exact words in front of me so you don't need to read them to me right now i understand that and and what he may not have known but which is factually true from the denial document and remember the denial document was not put before the jury it's part of the record you can you can argue you can argue to the jury that gee the c e o was on the stand here and says and says they perfectly fair to say yeah they're relying on that mexican complaint but their c e o says they denied it so why are we why are we fighting about that that's a perfectly fair argument i would invite the court to consider excerpts of record page fourteen seventy one which is a page from the denial document true that that i'll document is not in the record it's in the record it was now but it's not it's not before the trial court you were told not to use the denial document the trial court you were told that was excluded from evidence which i know what it said yes it's a great argument for your side but the judge kept it out of evidence but the argument that i have your honor is precisely what was stated in brief and that is  denial but we denied what's in the petition and you could have said to the jury they denied what's in the petition so you should pay no attention to it but instead you said let me tell you what they did i all sad and then misrepresented what it  didn't misrepresent what it said you were not allowed to say to the jury what the denial said you don't you agree to that now if i did agree with it it's not part of this record because in the summation we did not say what the fed we said that mr hamdi said that sensually by denying the allegations that they're denying that there is confusion and that they can't have it both ways at least that's a fairly accurate paraphrase we know what you what you said was it of course they didn't show you their denial this is the this is the one that sustained where they said in effect that there is no confusion objection your honor sustained  you went forward and gave the content of the denial you i don't i don't know trying to case that the content of the denial was not supposed to be in front of the jury that's what the judge told you and the fact that that  the c e o conceded that there was a denial didn't give you license to say what you thought it said so it on the misconduct issue i appreciate your position but at least from my perspective you're much better arguing  kept said to the jury no no that's wrong and no objections to the other misconduct and frankly and again this touches a part of this whole is was there misconduct issue but when the came back in his reply summation and didn't say anything about what they now say is misconduct in which well what could he have done what could he have done in risk reply and say you know that was misconduct because you're not think of an ineffective reply i might have asked the judge for a curative instruction on the spot and they didn't and so the all they got was the general jury instruction they don't pay any attention of lawyers they're just they're part of the circus but you want to give you a look at the evidence but but i'm not sure what the council could have done to him to unring this bell and i think the reason why he has a problem is because again they're saying that we were misrepresenting the record we believe misrepresent the record because the only evidence that we went down to mexico and said confusion like we could all of the things they're saying is this petition document which is in the record but if you look at that issue documents there are many things that are not there that they would like to have here number one the word global never said go seize globe fill bottles number two but you never objected to their argument look we're not the issue here isn't not with is now with you got some excuse to go outside the isn't this in a case that looks pretty close on the merits why isn't this sufficient misconduct to to say let's go do this again without the misconduct her and get again your honor i think the briefing you'd have to concede oh my  point we don't think it's a close case and at the start of this case the trial court did not think it was a close case because you may recall this is the second time that this matter has been before the ninth circuit  fine i'm fine with the issue that this is a factual question it's not it's not a case sometimes you criminal cases we talk about harmless error right we say look there's so much evidence the guy was guilty then there's an area here but we're not going to worry about it but here  strikes me as a jury question and you throw the misconduct into the into the scales of justice or tell me why didn't tip it enough for for us to want to think about a new trial this case is you on of the scales of justice or weight according to the test us on all the parts well one of the one of the parts that we argued quite stridently at trial was the one that i think his daughter made reference to and saying gee they look pretty similar to me and that is the  of the factors which is similarity of the trade dress in terms of it's look it's feel it's history but there are seven of the other factors as well and i think what we can all agree to is that the alleged misconduct here had to do with that factor alone but there are seven other factors for example the eighth factor here are is does the plaintiffs intend in cases where there are different channels in this case we have vodka versus akila does the plaintiff intend to move his or her business into that competing product line product line differentiation nothing was done in mexico or said in mexico or the alleged misconduct in some summation really has anything to do with that and the jury can't just look at the bottles and say well they seem pretty similar to me yeah so they don't seem similarly now they are required by oath to go through all eight of those factors and make a determination and in this case if there was misconduct the misconduct if there was something said out of line in the closing argument it didn't go to all eight of those factors let me suggest another one that it didn't go to marketing channels what does the misconduct here that something happened down in mexico that there was a denial document which we weren't supposed to say the contents of what does that have to do with the marketing channels between these two products i don't think that's the right analysis i don't think you would i don't think it's proper analysis when we're looking at to do is say because they don't really bear on each other is that the misconduct is you've made them look like they were concealing something from the jury and the inference from that was that they had taken a position inconsistent with their position here because more took two d ethics incredibility at their case as a hall as opposed to their individual sleek craft factors all i'm suggesting your honor is that the jury had to look at all eight factors the misconduct only or your argument is essentially your your case was so strong that this couldn't we should  shouldn't conclude this is likely affected the jury verdict absolutely your honor and it's part of the reason why we you know we know what the prevailing law in the ninth circuit was and attorney's fees we didn't need to bring in attorneys fees motion but we really thought that we had a very strong case which is why we brought when we still  i my focus is simply on one thing i'm not here to defend necessarily the statements that were made in clothing that to defend both the trial judge and the jury who were there and made the  decisions he in order for this court to impact a five day jury trial to the detriment of of the parties need to find a piece of discretion on the part of judge marshall and i don't think there's any indication whatsoever of an abused by judge marshall she points out in her ruling that perhaps thirty seconds of a five day trial involved these statements thirty seconds of a one hour  closing she sustain an objection to the reference to the actual document i think i would posit that the other two statements one objected to because in fact mr heney did testify that there was a denial the judge also the tragedy also twice instructed the jury not to consider the argument of counsel to be evidence both in a pretty instruction before we start of the evidence and not long after this closing argument was made the unanimous jury came back in favor of the defendants and to suggest that they did so by ignoring explicit response you know what was in a response he was told point for the questioning he testified that he was told it was a denial but elements knew that that denial didn't include anything to read to likelihood of confusion and you can use your time however you want but i think the issue for it because the issue for me in this case the hard issue is its misconduct i'm willing to accept its misconduct the question is is it enough misconduct likelihood of confusion yes or no they that the testimony by elements counsel who is an officer of the court jury knew the presume i suppose that this that this lawyer had read this this response and and believe that the response admitted that we had made it it's no likelihood of confusion that this is so it so questioned on the verdict for the prejudice that the district court never got to the issue of prejudice a district court looked at whether it permeated and i never determined whether that whether the these the quality of the false statements affected our right to a fair trial if you tell me why they did and i'm sorry you want to tell me why they did why why did you tell me why these effect and it's more likely than not it's rather then it we didn't we don't think we got a fair trial we that we think it's fundamental fairness that was affected here but it but there was the court didn't really address whether or not this was a material effect on on on the verdict and went right to whether it was playing there and in the end just did a mathematical calculation there was no determination made with respect to prejudice that's why if you don't if this court doesn't doesn't instruct the jury i'm sorry doesn't instruct district court to enter the j a judgment as a matter of law then we at least believe that this court should institute should reverse every man with instructions to apply the fair play the test appropriately there oh is this court has said many times the evidence of actual confusion is the best evidence of likelihood of confusion we have the defendant kim brandy testifying admitting that while out hawking  cot tequila she encounters actual confusion people walk up to her and ask her if it's a crystal had a bottle you don't always have evidence of that of that nature in a trade in the trade market trade press infringement case plus every other see craft factor submitted and this session of the court is adjourned for today to get much