it's number twelve sixteen thirty five and g two distributing incorporate it a california corporation it all or says innovation ventures l l c or not to exceed fifteen minutes per side mr tommy morning your honor james told me appearing on behalf of the appellant's in this first case i think we have two cases involving the same parties i don't know whether these are consolidated for argument or they're going to take them one after the other if they're not consolidated i'd like to reserve three minutes distributing alpha performance labs and also mr geoffrey deal in the words of the great philosopher this looks like deja vu all over again because the last time i was here it was an energy shot case and judge clay was the presiding judge but that was a appeal of a summary judgment motion this is an appeal of the denial of a motion for a new trial and i think this is been well briefed i just like to hit some of the highlights we believe that we deserve a new trial no judge borman made a couple of mistakes in respect to evidentiary issues for the following reasons you know again i'm hitting the highlights i think the great weight of the evidence section of our brief was was well briefed will rely on that first of all we were denied access to  defender excuse me the plaintiff innovation ventures product formulas during this coverage phase of this case and why that is important is because of the time of trial our expert witness cannot compare product formulas to determine whether our products were as effective as the plaintiffs products or even more effective so we were denied that opportunity even though there was a protective order entered in the case why is that even the standard i'm sorry judge why is that even the standard to determine whether you are more or less effective than the it is not i agree it's not the standard in the industry every which you just said was the problem well well that you didn't you didn't get the other guy's formula but that would not have a stablished whether your formula produced this six seven and fourteen hour energy boost in in any event so i am still trying to figure out what difference it makes well that our expert in the cave that it would made make a difference it would have been helpful determine whether france is their product had one hundred eighty theirs and use their study in order to form his expert expert opinion so we were denied that opportunity i mean the standard in discovery is pretty loose if it's relevant or if it will lead to relevant evidence we were not given an opportunity but  seems to me you're almost saying look you're accusing us of lying in the effectiveness about our product and our defenses you lied to no we didn't say that we are defenses that you were they say they say there's last five hours you sell more you say well gee it's ours is better it's six seven or fourteen hour right in the show that they did a study of five hours if they do have no study of six seven or full their study went to the six zero or zero hour mark their study did show effectiveness at six hours that's our client mr deal had a had an ex partner in california develop the product had a very similar trade dress just one central district district of california indicated it was not a trade dress infringement he could we could not use that opinion to show why mr deal had no intention to infringe their trade dress ok because he thought that as long as there were subtle differences it wasn't a trade dress infringement we were not allowed to do that you say you're not allowed to do that if he was involved in another case he got an opinion he read it he took it into account that's why he did what he did so he didn't testify with respect to the opinion we couldn't get that evidence and the judge instructed us not to talk other cases and that leads us to our next issue besides the testimony of a lay witness compared to with the opinion of a federal court judge we all know what holds greater weight is the opinion of a judge of course ok and that leads us to the next issue judge borman indicated the parties could not talk about other cases or the results of other cases my opposition interjected issues regarding the monster beverage case it was all or my client was also sued in california judge warm and indicated in a ruling on emotional lemonade that we could not talk about any settlement in that case they listen to the testimony they asked mr deal if in fact he paid money and settlement of that case he said yes i did he had to answer truthfully obviously him in a question the question was and you paid money didn't you and he said yes i did but but in to what in response to a line of questioning that they were that they were listening to that they were of questions that they began asking they say they don't ask anything about a settlement and tell your client volunteered information about a settlement in an answer and i don't think that's prompted by a question and then followed up on it i don't think that's  accurate when you read the record judge i don't think it's accurate i think they began the questioning about the monster beverage case and they indicated well you know all the case is over and you paid money didn't you and i think that was prejudicial to our position direct violation of the court's order in limiting and we believe for that reason alone we are entitled to a new trial if it had to deal with mr deals credibility his credibility with the state with that issue in this case so the jury found intent and we think this one of the reasons why they did  one of the other issues in connection with this case is whether the the judgment covered all of the findings of the jury we believe that the judgment should have  included items where the jury found favor of the of the defendants and the reason for that is this the jury found that the caution statement that we used in our products did not cause any damages to the plaintiff because the caution statement is simply that i it's a caution statement any actual damages you buy the product you throw it away you consume the product you don't buy the caution statement it's not copied and soul of a the reason why this is important is because this issue has come up in other cases in fact i have one other case where this is an issue where the caution statement causes any actual damages if this issue is already litigated the collateral stop will be strong we think that should be in the judgment should have been in the judgment in this case ok exonerated with respect to the caution statement we would have liked to have that in a judgment rather than just a verdict form ok and the judge did not include that the caution to the plain of suffer no actual reversible error in this case it's not it's not reversible error or emptying a new trial is just a correction of the judgement that's why bring it up in the final issue is the trade dress issue and whether the have talked about the safe distance rule if you've been found to be an infringer in the past then it's your you can't compete as freely in the future i think this court has not applied it yet several district courts have but i think it's limited to trademark not trade dress judge borman applied to trade dress in this case and the reason why we think it should not be applied in trade dress cases because trade dress is more subjective it's the overall look of the product it's  e old judge him one for instance in california and the other product involved in with my client said no it's not similar judge bormann in this case said yes one of the new product labels is too similar ok and so it's too subjective of a standard to be applied in trade dress cases and that's why we would suggest that this court not apply the same distance rule in trade dress cases as opposed to trademark cases and for the rest of the issues will rely on the brief and if the court has any bormann did find the mr deal my client in contempt because some of the enjoin product was mixed in with new products and sold on a couple of occasions that really is not part of well i guess it is part of the appeal but it's not a very strong appeal let's let's let's say that but there was another motion to hold mr deal in contempt for a second time and that involved the what we consider to be the non infringing new trade dress and they consider that to be the new infringing trade dress again the safe distance rule applies in that context ok so they file another motion a second motion to hold mr deal in contempt the judge borman denied that motion so the labels on products that were not turned over appear they're not involved anymore they did not appeal judge borman is ruling on their second motion for contemp so that is probably moot at this point labels other than the ones that we turned over or not issue it seems to me something's either mood or it's not mode it's not somewhat so do we need to address that contempt issue or not only with respect to the safe distance rule as to trade dress because he was held in contempt and that there were attorneys fees paid in obviously if if this court rules otherwise you know he might be entitled to get those back but that's the only that's the only issue that's involved in the in the contempt is whether the safe distance rule applies to trade dress judge borman did identify the elements of the trade dress that he felt were infringing and there was some disagreement as to what he said but apparently he's clarified that now and that's the only issue left in  that area thank you thank you infringement and the defendants or enjoined from using the copyright but no damages were awarded so the copyright claim was not decided in their favor the curate just didn't get any damages on it with respect to the second motion for contempt judge borman tonight that without prejudice so that's simply not at issue here and that may still be raised below depending on his injunction you know this is an interesting appeal because they re seven different issues on appeal you know basically the judge in the jury got it all wrong but the one thing they don't do is they don't even cite to judge borman subpoena and addressing every one of their issues they basically filed their appeal brief was the same as their motion a new trial judge borman fully answered they had it docket number three fifty one and they don't even address judge bormann so pinion here the standard is an abuse of discretion i don't see how they can argue he used his discretion or even address what he decided this is a very simple case the defendant's copied plaintiff's product and try to trade on it we got a policeman here injunction no matter how we tried to resolve the issues he kept coming up with new products he would keep getting as close to the line as he possibly could the evidence was so clear below all of the fishes factors that he violated the trademark in trade dress we tried to make it very easy for the jury if you look at the verdict form we get them products to circle the jury did a very good job some they found most they found for us that you know some they found for them you know the only argument they really make on appeal is that there was no evidence of intent intent to copy in tents always a very important issue in these types of cases well they say the fact that their client testified that he didn't copy it i dispositive of the issue while the evidence is contrary to that assertion circumstantial evidence is usually used for intent very few people get up there and say hey i did it i copied it i knock you off on purpose to try and trade on you so we have the caution labels the same the products look the same anyone looking at this would know that they intentionally copied us in fact that really wasn't much of an issue judge borman orde us attorney fees and in his opinion docket three fifty five page seven he found defendant's infringement sufficiently malicious willful fraudulent were deliberate to constitute an exceptional case meriting ward of attorney fees we think there's more than ample evidence in the record it's in our brief it's in the the appendix this is a very simple case of trademark and trade dress and french mint now the next thing they raise is this inconsistent verdict we think they waived it under rule forty nine b you have to raise it for the jury goes out we took the verdict he asked the jury be polled and then the judge dismissed the jury and said you guys got anything else and it was never raised so  inconsistent verdict is waived on the bridge is consistent all you have to is is take a look you can see how thoughtful the jury was with it now but one thing counsel has spent some time on here are these discovery rulings the elimi rulings saying we weren't allowed to discuss other litigation well when i was preparing for this hearing i went back and read everything i can't find the eliminator ruling and the reason i can't find it is judge bormann to put it on the record when we were deposed we were taking the testimony of mr deal this issue came up we go to the sidebar we start discussing it and then judge gorman says this doesn't need to be on the record everybody take a break so what was the ruling in limiting well fortunately judge gorman put it in his post trial opinion exactly what his ruling was and what judge foreman said was like and this is on page fifteen docket number three fifty one like defendants prior litigation involving urbanite pro discussed supra plaintiffs was able to introduce evidence about the prior litigation involving hanssen but not any judicial opinions or attorney filings in this case gorman told us and i said it's not the record that's the only place i can find it memorialized was look you can talk about the fact that there were other lawsuits but i don't want you putting any pleadings in i don't want any opinions in them i don't want any complaints and there's a very good reason for that because a lot of those opinions will have a law on them and a jury could read that law and be misled only the judge should instruct on the law so we were allowed to question all these controversies i really think this this is much ado about nothing in connection with the evidence that was taken below if you look at the record and as we've cited counsel for defendants kept repeatedly talking about our other litigation that we were involved and so it was a pretty even playing field and judge bormann did a very good job calling balls and strikes on the at and in response to your question earlier did his client raise the issue of the of the lawsuit first of course he did and i followed up and his answer was basically an absolute  he said they were going to pay him where the fact was he paid down and that's when we followed up on the questioning so i think on the motion limit which involves the herbal nitrile case the monster energy case i think those really don't have much merit finally their judgment issue is kind of interesting they want the court to enter a judgment on what we didn't prove what we didn't win on in other words they want to judgment that they can take t people say ha we want on this we want to mat and we looked at that it's a very unusual request i mean i haven't really seen it come up over the years that was something they want to use to take to the market to say this is ok that's ok and judge foreman said no i'm just going to rule on what the jury found and i don't think that's much of an issue i don't know why it's even an appealable issue in this case because i haven't seen any law that supports what they're asking the court to do  with respect to the contempt motion but contempt motion is the only issue that i think is interesting in this case because i think the judge got it right on contempt basically what happened was is even after we got the injunction he continued to change his products and he also continued to sell products that were specifically in joint so we moved for  bases one is hey you're selling stuff that's right here in the injunction the pictures here go to selling it and he lied to the court saying he'd gotten rid of it and we bought it and he was still selling it there is no doubt they had a loan justifies contempt the second issue was he was also selling modified products as well and the judge found those were too close to what he and joint and said those also violate it and form a basis for contempt now their issue on the modify products is that the safe distance rule should pay the safe distance rule i don't know about stamping so much for head with an eye it's more like a dog by case dog gets one by start nipping at people again he's got a problem the safe harbor rule is basically if you have been found guilty of violating someone's rights and you've been enjoying and told to change you have to be a safe distance away from what you did before you don't stand in the same shoes of someone starting from scratch now it's an interesting group of the law the sixth circuit has not weighed in on it either way since the  adopted it and i believe that the rule has makes common sense that you feel once you've violated someone's rights you don't get the same rights as someone else and this circuit said that the safe distance rule does not apply to  i've never i've never seen it split that way that's why i find the argument kind of interesting i've never seen it split that way trade dress is simply a subcategory of trademarks there's nothing particular unique about it it's just not a name or a symbol it can be an appearance of a product in the packaging and as we all know it can be the product itself and have a trade dress it's just a trademark at the end of the day so i haven't seen any court sever damage before or split it out that way i don't think there's any basis to spit it out that way that you can get closer to some you can violate someone's trade dress rights easier you can violate your trademark rights because that's basically what what they're asking for and i don't know if this is the case for the court even opine safe distance rule because he didn't move further away in this case this is why i think this is a little bit of a red herring it's not really the best case to do it if you look at our brief pages twenty one to twenty three this is on our contemporary you'll see what was in joint and then you'll see you'll see here's the accepted trade dress here's what was enjoying and here's what he switched to and the one he switched to was closer to our product than the ones that were in joint so the safe distance rule doesn't even apply in this case because he went the other way he didn't move further away he moved closer and so but if i don't it in my plan that it's a very interesting issue whether the six circuit wants to do it in this case or not i don't know i don't think this is the best case or that the issues have been fleshed out enough or the record really calls for of course that's a decision other than i don't know if the court has any questions that's all i have did make the ruling and it was violated that's number one we believe that trade dress is somewhat unique because it's different than trademark trademark q you have a name and if there's a subtle change in the name some of the courts just records in this circuit have indicated that you have a safe distance rule does apply in those circumstances on the other hand as we just indicated that trade dress is somewhat you unique in the trademark in the intellectual property field because it's a general perception perception of the beholder perhaps so we think that there should be some minimal standards to apply the safe distance rule and trade dress cases and what is what do you say the law of the other circuits is with respect to applying a safe distance rule to trade dress i frankly i looked but was not able to find anything with that distinction all the cases that i was able to locate including a couple district court cases in the circuit were talked about the names of the companies or the names of the products i think there's a case of the talking about trademark talking about district court right not talking about the circuit i was not other circuits are there any circuit holdings on either going either way on whether the safe distance rule applies to trade dress i was not able to find any so you think this would be a case of first impression not only in th circuit but in the united states it would appear that way if the circuit court level