haven't been in the ninth circuit or in this courtroom before the clock starts a twenty and it runs all the way down to zero so if you're the talent and you want to reserve but rebuttal time and it gets to be  our time to respond to argument from timex even though the jury awarded in excess of two point four million dollars in compensatory damages we are here today because significant errors at the district court denied our client side by side and the different statute of limitation would apply to that as not a liability created by statute montana's general three year tort statute of limitations should apply and under the general torts statute whereas when it was adopted by the legislature provides for a one year statute of limitations for the statutory cause of action and the trademark as an action under the state trademark statutory application that's right in the decision of a royal insurance first is wrote in l talks about the basic test on what statute of limitations to apply is whether the liability preexisted at common law and the state law claims there's the possibility of punitive damages is that the only difference that's correct ok so let's just assume that i'm not saying this would even be the case let's assume we agreed with you on either the unfair competition common law or the statutory trademark claim that your claims are not barred does that mean that the whole case would have to go back for a retrial no that would i think there would what would be required is a trial on those particular issues sucre example if you reverse on the trademark claim we would go back and proceed under the trademark claim and under montana's of punitive damages law with regard to willfulness and malice on those elements alone pleadings to the court that we are not seeking any additional compensatory damages because of the contents of tory damages they have to be tried and presented to the jury the jury assessed community not assuming that we said there damages evidence what i think there's no reason to disturb the underlying jury verdict that they can simply be instructed by the court that in a prior trial a jury has awarded two point four one five million dollars we are here today not about compensatory damages but slowly looking at one or two issues trademark infringement and whether those actions were committed willfully right for the money in assessing punitive damages i would think a jury would would have to think about compensatory and punitive and compensatory damages you have now art on a statement claiming i think the nature of the claims themselves to some degree are overla and what we're talking about is you know the use of these protections materials by timex promoter their products so that was of course relevant to the of the copyright claims but in this in this i think that would be a determination for you as to as a matter of law whether a trial on these compensatory damages again would be necessary i certainly don't believe that there are for example under montana law on our punitive damage statute specifically requires two specific proceedings for our community damages that we first you have the trial and compensatory damages and the sac you have a punitive damage that's under twenty seven one two two  one and certainly most typical scenario is that you have the same jury sitting on both trials but i don't see that there's any reason why they cannot be informed as to what you know here's the problem amended complaint at that time all we had planned was the statutory cause of action however this issue was raised and briefed to the court prior to the first trial and in the final pretrial order before the first trial we did include  if the judge is for example on the trademark claim your honor if the judge is incorrect and improperly private the statute of limitations we had been simply attempting to preserve our cause of action for this very day that the on whether the common law trademark or unfair competition claims should have been excluded solely on the basis of the pretrial hearing correct it's because they never were your honor they were excluded for other reasons for just a moment i would like to say that to address one aspect of timex appeal and certainly the cause nexus is very important in this case prior to the second trial we had the benefit of the court decision in mackey versus riser and we did exactly what jackie required the jury was properly instructed and that instruction is not on appeal before this court what time it did was to take holyrood's copyrighted film inception was specifically designed in part to promote timex expedition watches it paid twenty five thousand dollars to have the time next expedition name and its expedition watches prompt prominently displayed in its film and after telling polar bear that it would not do so timex the news that their home in the interesting loop tape illegally for years before hundreds of thousands of professional buyers and specifically promoting its expedition line of watches we believe that if this case is not proper for an award of indirect profits and it's difficult to imagine a case that's going to have so much of a causal connection we have statements from timex sane in writing that this was an they were trying to put a new spin on timex to rebuild their brand to get to the people at the top of the pyramid those are all statements from timex once we show for actually that cost of connection the burden of apportionment under five all for the switches to  they have to come forward at that point in a portion so what we did with professor hanson was over and above that to try and educate the jury and to provide them some guidance but certainly just as in andrea's first post wagons we did not need an expert we could and i think with that said i would like to reserve the rest of our time thank you so much represent defendant to say for now we'll put those over here because they never made their way into the complaint but we currently stand on the trademark compliant trademark hastie if we were to determine what the judge was wrong as a matter kind of trial had taken place below my client would have argued that having purchased twelve hundred fifty copies of the video under a contract provision that says they could be used for promotion and the fact that the sales people went out and used the video for promotion by showing it and using it in a loop tape that a trade show that that wouldn't be the basis for work unit of damages or any intentional mistake that would have been a basis for negligence it might have been wrong and furthermore it might have been like that we lost on that issue and we were not allowed to introduce into state trademark claim when that just go back and and he cried as an independent claim after me and you say first of all you might get rid of it and some of my motion to dismiss or summary judgment and if you didn't then you would have a trial just on the trademark section five hundred four of the of the copyright act a copyright owner can recover the actual damages suffered as well as the defendant's profits attributable to the infringement actual what the point of say they would have charged it has to be objective based on something in the marketplace such as prior license  samples for the infringing you know for the for example for the watches as a result of the advertising of promotional you can't come at it the way mr hanson did the rule in this court and really every other court is there has to be a legally sufficient non speculative basis to establish a causal link between the  infringement and profits and the way the statute really the methodology prescribed by the statute is to start to look at the defendant's gross sales revenue purchasing decisions and when we look at the expert mr hanson he asked what about the discussions he said i didn't get into that present required to do that correct now he's not required to that he but you are where we have the burden of it but we can ask him and they can present rifle and when we asked him he said i didn't get into company can raise its price and get away with it that may be very interesting as a marketing phenomenon it may only be the basis on which a company decides we're going to try to raise our prices next fall and see if we can do it but it would you go right at the heart of his argument and that is that this branding premium doesn't have a place in that copyright law because you didn't really show a link between claimed lost sales or increased and gross revenues from the expedition watches were in actually by stipulation for the years that were at issue and what professor hanson did was not only educate the jury on marketing branding and the importance of these trade shows and the significant of that that had a quest proved to be over a period of years for time actually but how that of that through the brand premium method enabled them to increase their profits and and those were his testimony with regard to branding directly talks about their increased capacity for sales when you look at the brand premium calculation it is based on sale it increases their capacity to charge more for the watch which in turn goes to profits and what's at issue under the bible for me is not sales but revenue will testify that they causal relationship between their price increase and the use of the copyright absolutely that was his ultimate conclusion was that using the brand conclusion to what what did he say that show that the price increase was caused by swiping the copyright what he did there was extensively researched timex marketing history and what was going on at that point and through the brand premium method and its application there's and after abuse at the end as to what parts go through certain marketing efforts that's the whole purpose of the brand premium method is to identify what's the revenue from a particular marketing tax records general expenditures the other thing that it tried to argue was that all this should really be limited to split second sports that it should be treated to those sales only but of course we had contrary evidence that in fact there were major retailers at these trade shows and that they would take them back to their headquarters where the sales were ultimately made i think they also talked about that we had sport million dollars a year of other advertising that we did now they never affect marketing and present i think first of all again i would point out that our past evidence of this cost of connection was through representation suffice timex about how successful it was o