is actually best articulated in their read brief here if you look at pages fourteen to fifteen and it's repeated forty four to forty five they explain what findings and determinations they were making for example or page eleven of the opinion that appendix page eleven and what they simply explained it means that yes you may have played this at the beginning under a rule twelve the sixth year it's sufficient for us to institute but at the end they went back sort of reexamined the entire set of pleadings that went in and then made some determinations about randomly and there are three different reasons why we believe that that was legal the gives a list of criteria which if they are met after investigation is instituted the relief is to be given we're as g two  listed the second problem is it also disregards the distinction between g one and g i'm sorry and the one the one is the issuance of exclusion orders when there's not of the fa and that is subject to certain determinations the commission made of the type they made here but that requirement is left to other ones but the most important give us the most important reason i think this is an error is that there's a commission of opinion from last year that we certainly do with our papers i think it's called in re electric skin care devices and i want to just read a couple  whole thing i'm about to to read you is the commission's interpretation of their own enabling statute and that is intitled to get to deference on the normal standards of a ph so if that answers your question is there or is that the commission issued other than this opinion have the committee issued any regulation or any other formal statement regarding its interpretation of  would say yes your honor and that is the most relevant of the other i think they've issued for lack of a better term is the stuff we cited ignore brief where they said repeatedly that the purpose of investigation is to determine specifically whether the complaint properly alleges a cause of action and that that you're pursuing whether it's patent or trade dress and that that's why they're permitted that defending copyright that is a whole different issue that to be honest i would have to get into some privilege stuff for two to disclose that at the system i think i can generally say a decision was made that would simplify the appeal without doing that there's probably more to work but i would get into the privilege but but you're right if i could just complete the thought on how they've interpreted their stature if you look at pages thirty seven twenty four thirty seven twenty five there's some language beginning at the bottom of thirty seventh twenty four with the commission says the legislative history of section three thirty seven geno's that the addition of the provision for the four judgments was motivated by the fact that sky is usually difficult if not impossible to obtain from name respondents who have chosen not to participate in the investigation or skip the sites now but the next sentence thus congress recognize that without participation it is difficult for complaining to establish sufficient facts to warrant the finding of a violation of section three thirty seven or what relief is applicable so what the commission is saying there is congress the commission's interpretation of the statute is congress decided not to put the complainant to its proof that it would normally have under the normal standard of proof congress says you may not be able to think what they're saying is yes we institute it correctly and they can't be saying that by the way because the first part of g e where they're required to presume the facts to be true that they did that and they wouldn't reach that if we didn't have a proper complaint at the beginning it would just be dismissed t properly at least at the beginning alleged violation and when it proceeds is the commission supposed to go reexamine things under the new standard of proof that they seem to apply or are they just supposed to do a checklist in j word which is judgment against the person the found instead it will undertake an analysis of various factors differs a little bit from circuit circuit and what those factors but i understand your position to be that here or it's different i mean one could argue the day congress legislates against that backdrop understanding that that's how district works here in the fall situations and so we need included that language that you're going to assume the based on district court or they going to assume there's going to be something more than just that but the statute it's not that the statute says presume the facts to be true that we're arguing therefore they're mandated to issue the relief it's that there's a second piece of that it says and have solved this problem judge so by if you read the analysis from the commission case that i just read where they say it's difficult to prove a violation or to establish the relief congress could have drafted j one to say if the respondents the fault and you've properly alleged then you're entitled to the relief unless the complainant you know but the complainer has to show that the reason he can't prove his case is because of the discovery that he can't get from graham that i think he's a creature of statute and the congress understands that very often the the the default in parties are not going to be in the  standard we're going to give you the relief if the importers don't show up and i would argue just stall that for from being sort of the back using the backdrop of the district court cases congress knows about the district court federal rules and i would argue this is probably unintentional the point you're from that because it has language that's much stricter than what's in the district court commission of rules  for the relief requested in the complaint what do you make of that just as i mean here you did get things moving well here's what i would say i i think i would not disagree in fact i would would advocate that with and i think you see with the implication is that they issued an exclusion order against patent rights and trademark rights but those are separate causes of action that just happened to be additionally in this case let's suppose i didn't i didn't have those other rights and i just said proceeded from the beginning outrageous i don't think that it's the courts the school concludes that they couldn't do what they did in that case i don't think the fact that they had two other points that happened to be in this case justifies what was done here i think you have to look at each one separately otherwise how could i be better off if i just took away the other claims and put them in a separate receive let's talk about the fact that you guys did a full investigation before you you the complaint before you started the investigation right and the commission did a pretty institution of us and i and in fact they said some of the some of the allegations weren't good enough and refused to institute on some of those claims right they did and the specific reason why was that they failed to recite a suspect proof that these items were actually imported at no point court doesn't do write a discourse yet they would not do that but and the commission we try to screen out the fishing cases but it's an x party process it's not perfect we don't do it i guess directly all the well the trade mart is a registered trademarks that artie gone to p t o and had the trademark office say you have this right it's not a case of trade dress in trade dress they have to show everything at the show that it's secondary meaning saying there was no legally enforceable trade just because the trade just was functional when there was some other problem with the transgressor that they were claiming right obviously there's no parties here nobody made that argument come back and then we institute the other parties don't come in and don't do anything and the end of the day without even going back to them we're going to said you didn't prove your case against default in parks right well when it came down that is what happened when the commission so you never said they defaulted they never raised a defense and we the commission are going to raise a bunch of defenses and not give you an opportunity to  so months ago and it might very well have resolved already you never put them on notice that you were going to enter this refuse that order well they've been on notice since at least when we issued our commission opinion and  they argued in their initial brief and in their reply brief they said that this wasn't an issue that they were just going to all rely on the shall language but i mean regardless there's no other process the commission could have afforded they defined their chance for a process so there's not much they can do about it now to find why wasn't it screened out under the statutory screening procedure that the commission has the authority to do if it was that easy to conclude that they didn't properly identify t t you would think that that's the stage the point at which that would happen ideally that would have happened but it didn't care and when the commission ultimately determined the final determination in this case it concluded there was no trade that's right and that should determine that there was nothing to do was not the issue even understand your argument different i don't understand that argument because what you ultimately said is the base of the pleading wasn't good enough why is that not just of what we said well the question was also making a final determination and what we did  the difference is we accepted all facts as true as is required by the one and with all those facts is true found out that there was nobody will be defined traitress so the difference is that when you're actually at the final stage you have to be able to physically write and order as to what products should be excluded and citing all of their district court cases there's many cases where they say this is when i can dismiss the straightest claim because it's really  just we did not see an unfair act in terms of trade dress infringements and also under the lanham act it all has the burden show that they're on register trade dress it's not functional they don't make any attempt to do that and their products are medical equipment it's blood trade dress that clearly is encroaching on the function of the item and they're just arguing that the shape in dimensions of a cervical collar are a trade dress there's no way to make it competing i guess cervical collar that just is no where near that and to be able to define what is excluded and doesn't know how i mean that's exactly what i'm saying and also we have to be able to explain the customs and customs and it's you know and if we ourselves cannot to the west and the thickness that's just an opaque thing i don't know what that means i don't know how you would tell if something is similarly likely confusing to that and there are other features are so extract that they're not really describing their own products they're just describing constantly to know what to exclude you entered in order saying they don't have a valid change or right and what we did we looked at all their papers and we found that they did not have a valid trade dress based on what was in the record the commission has no at the ready to declare any property right invalid unless it is asserted as a defense to an infringement claim right for traders they have to show that they have that right in the first place similar to what they asserted with respect to the trademark and there are such things as common law trademark that they would have to establish the right you're right that there are such thing as common and those require more that when you have a register want to bring back to the two different standards councils making here today what i believe is a very different or event than what happened below and what happened in the red brief here is now saying i think the way i interpret it really was not trade dress job quicker if you look at what's on five forty others and then you look for example at four twenty of the us and you see and this is just one example of many products but you see you can hear five forty two with the defendants are bringing for that they're infringing it's a card to every curve every hole you know the colors that you know so what i'm saying again to go back to judge a mouthpiece question about their argument that it can't be specified at the beginning of the case be yes or other and that's what some of the cases the other complication there were several others where they say here's the description and the cases even say a paraphrase but it may not be good enough at the end of the case but for notice twelve be searched and that it's good enough and we can narrow the form of border so that's all we're saying they just didn't have the right to go back at the end and the statute g one doesn't say go back and