morning your honor may i please the court i am robert grenier i am the attorney for the plaintiff appellant marcel fashion's the plaintiff appellant has raised three main arguments on its appeal as to why the lower court decision was  error and should be reversed and the judgment partly the second amended complaint reinstated the first in principle one is that the language of the release and waiver in that contained in the two thousand and three settlement agreement does not absolve the defendant pelleas from liability for future infringing conduct as the court held in its decision in the lower court and yet this settlement wasn't part of the trial it was not part of  these intervening years that that's a great question your honor and q in the two thousand case it was raised it was the release and waiver was raised in at least five different instances one was in a motion to dismiss prancer the second was actually in affirmative defense that was contained in the answer which was filed after the motion was denied by the lower court it was again raised in two thousand and six and two thousand and nine both it applications for summary judgment and for an injunction and then again it was raised at the time that they had the joint pretrial statement to be filed before the trial the defendant pelleas chose to waive that defense at trial whatever reason didn't press it and no they did not they did raise it was before lower court your argument is that because they did that on florida contract law which i don't think applies here at all i think this is clearly a federal procedural law my only question is normally res judicata comes up in the affirmative case right comes up whether claim can be brought in the because they either could have or should have raised it because it was relevant to the issues that were being decided in the in the trial that it was deem way for that purposes and i think this was the waiver is one thing  claim preclusion pertains to claims or here defenses whether they are actually litigators or could have been me yes that's true and here i don't think there's any doubt that it could have been this defense could have been also the two thousand and ten judgment became presidential in this case where there was a finding of post two thousand and three trademark infringement and i think that's been ignored for finding it into the trial yes yes and i think that was ignored by the lower court and i think it's ignored in the felony defendant a pelleas brief they've completely missed the point that in two thousand and ten when the judgment was entered and it was not appealed they accepted the finding which was trademark infringement reverse confusion and that became presidential and that was a those were brand new post two thousand and three infringements they were not related back and i think a lot of the problem in the argument is is that defendant pelleas focus on one the trademarks yes that's true but the court in its decision that's in front of the court today related that to the fact that those two marks were combination marks of pre two thousand and three register marks and therefore they marks well it was more than just those marks your honor there were i think at the end in this in the final judgement twelve marks most of those i think ten were the pre two thousand and three mark registered marks so the finding in two thousand and ten not only related to the new marks but also related to the pre two thousand and three marks i think they eliminated several marks and they can find it and it's contained in an appendix to the to the judgment where it's listed and counsel admits in their brief that in two thousand and five the case not only included the new registered marks but also the previously registered nine the issue there was whether marcel can enjoy and like he brands from using got lucky lucky lucky brand or any of the marks after two thousand and three right that's correct but some were registered later i guess after after after the verdict in this case oh no no no no registered after the verdict of the case they're all registered the ones in question were registered between two thousand and three and two thousand and five a bit but they were the ones that were registered between two thousand and three and two thousand and five incorporate it corporator it into this into the two thousand and five case yes yes so so the the marks that are at issue in this radiation are the same marks that were at issue in the two thousand pose in council just said is that lucky brand fail to raise the defense a trial in other words it was raised initially it wasn't raised again so there wasn't a final judgment so we know already from that there's no issue of issue preclusion so the issue becomes claim preclusion there's no claim preclusion because the claims are different and we know that because that was the whole basis of the previous appeal before this court in the previous appeal before this court lucky parent unsuccessfully tried to argue well that prior trial it ended in two thousand and ten and it was in result everything from all time and what the court this court wrote in the  most recent opinion in this court said no because that trial just dealt with claims from the two thousand and three to the two thousand and ten period claims after two thousand and ten we're different but those claims are the same the same marks they were just later infringements but they're but they're not the same marks and they're not the same infringements for two fundamental reason different infringements because they're subsequent in time and that's  the big difference and that's why the supreme court's decision and davis is right on point the reason is a matter of trademark law trademark law what might be infringing in two thousand and ten might not be infringing in two thousand and seventeen it's well but because the facts and circumstances may be different than the average the facts and circumstances are who has the mark no right to use them or no no your honor their only mark is get join the your client from using lucky lucky lucky brad or any use of lucky in the market and i did more than just get lucky and you're right your honor except that the second circuit in the recent opinion said it was unclear as to which marks were at issue and the two and that by the jury's verdict what the jury found infringing in twenty ten so let me let me take say three factual reasons why you can't say that there's claim preclusion one even though the march that they're now suing on were a subset of those marks the jury verdict as this court has found was not clear as to which marks the jury found infringing that's the law of this case and a lot of the circuits decision second this court's prior decision said that the new claims the claims in this case arose after twenty  appendix at eight thirty one the court said in this case the new case before your honor's the claims are gross subsequent to the earlier judgment and those claims will be tested that we think will be dismissed because of the settlement are in or should be but under normal trademark law they have to be proved up there's no prior judge leval the previous opinion said sheer speculation as to know what the jury was intending as to which claims infringe pless which the this situation is different what were the advertisements lucky take an appeal for clarification from the jury verdict no it didn't there but the remain what it is and when in the last appeal lucky brands try to use that to argue race judicata for subsequent acts from two thousand and ten sit now saying that that was decided this court properly found it wasn't decided that the current lawsuit has substance different claims for a different period of time because it's different claims for different periods where in title two reserve distinction between infringement and ownership of them are the ability to enforce the mark and the ability to force them are worth what was determined in the two thousand and five previous opinion wrote that it's sheer speculation and that's what judge splaying quoted as to what marks the jury found to be infringing number one two even if that were not the case we're talking about different claims and that's why the davis case is important because it's a different part of time i'm a trademark lawyer if i'm using the mark today we all know the polaroid factors your honour's have written many decisions applying that they look to well how well known are the respective marks over time the relative knowledge of those marks baby different how are they what are the advertisements like what are the channels of trade like all these things may change in the polaroid factors over time and that's why trademark is terrible ever get finality well like this well two things you get you get you don't get finality if there's subsequent infringements if there's no release you can keep suing over additional infringements but you get the nowaday here which is why this shouldn't be the trademark version of charges to be joined this because of the settlement agreement and the settlement agreement and from two thousand and three  him make a finding for the other side in the later in the subsequent motivation because in that press this point with that with them you're right they did and but it doesn't and it's in the strange as it sounds five case the results of the get lucky marks and i think it's really important you go back and look at the procedural history of the prior of the case that gave rise to the settlement agreement because in that case more self only has rights to get lucky that it's only trademark get lucky so when it's sued originally it was about lucky brands using at that time get lucky there was nothing in the original lawsuit that gave rise to this about any of the lucky brand marks that was not s pay the money the deal was there'd be an agreement not to use get lucky in the future that's in the settlement agreement we won't use good luck in the future but at with regard to any more own registered are used by lucky brands prior to the date of that settlement agreement those claims were released and anything relating to or arising out of those prior acts were just a valid to assume that this was difference there is what he's talking about he said to construe the lump sum judgment in morsels favor for lucky brands prior infringements of more sounds get lucky more work as effective authorization to lock burn to infringe get murky at will and without compensation for ever in the into the future makes no conceivable sense and he was right but he's talking at something different the language your honor just quoted was about the two thousand and five the jury verdict in two thousand and ten from the second of the geisha and in two thousand and five he was saying the idea that marcel was would be stopped from being able to because remember the settlement agreement wasn't raised from being able to argue that just because they got money from two thousand and three through two thousand and ten they couldn't bring new claims now that that's what he right but we're not talking about but and if there wasn't the settlement agreement you're absolutely right that would that was a mistake but because and so that was right the second this court's prior opinion i'm not quibbling with nor can i but what i am saying is that this court's prior opinion is instructive because it even describes the settlement agreement using the same exact way ju that we are talking about here he wrote in his opinion for the court that the settlement agreement acknowledge lucky brynn's right to use license and or register the trademark lucky brand or any other trademarks registered or used russian that is no bar by either waiver or a student or the settlement agreement language would control their whole defense here is that that that that was waived by n and if it were isn't then you win if there's a bar they went fair enough and i know my life's not so i'll just close with it's time has gone so i'll just i'll just close with the fact we know there isn't a bar because they can't have both ways in the previous case they said this court when and the previous the previous appeal in this case before judge of all wrote the opinion they argued that there shouldn't be race race judicata and judge will vote hold pinion was these are new infringements these are new claims if they're new claims and they're new infringements it's a new case different claims means no claim preclusion based on the second opinion from two thousand and ten and that is the davis supreme court case that said use the word men but it said because the original demands were about certain notes and they didn't raise a contract defense back in the first case involving certain notes and they didn't raise that contract defense that they would have won on but they did when they were sued on different notes visual notes in the same sequence covered by the contract the supreme court said it's ok for you raise that defense now even though you could have raised it earlier in light of one because it's a different demand it's a different claim and so to injure the reasoning of this court this is a different claim and we're entitle to raise the settlement two thousand and one the question is how should it end but you're out i'd just like to address that you know that's fine i'm good i just like to address that last bit davis be brown is not controlling because in the second case they brought technical defenses to the notes that were available in new york that were not raised in the first case it was different it was a different factual pattern and that's why they held at the judgment in the first case could not be used in the second case which is different here in our situation is the same continuation of the first of the two thousand and five case council continuously ignores the precedent that was set by the jury verdict finding new infringements  the language of our complaint in the second amended complaint is to enforce the two thousand and ten verdict because we claim they are continuing the same infringing conduct that they had done in the two thousand and five case which i think your adversary is taking the position that once there's new infringing conduct a race your car goes out the window because everything's new right factors have to be applied and it's a brand new case and therefore can't be you know prior claim would not be controlling their disposition with it except for the fact that they're using the marks which they were enjoined from using in the prior case the issues go to whether or not they have a right to use those marks the defense would have been proper in the two thousand and five case she admits they made a mistake they waived it they didn't bring it up here you're saying there's a difference between  right to use the mark and the way in which a mark might be infringed absolutely and that that could that could vary depending on the circumstances of a new case absolutely to use the mark is something that is fixed in time marks or any word that used lucky toto i don't think that they distinguish between various marks i think that in a compass ing verdict which they did not appeal  so as to completely and delegate a link the source of the goods using get lucky to the defendants who is the junior user of the merc rather than marcel and in fact ripped away the good will and the ability of marcel to build its brand that was the finding of the jury that was the in the case that was in the in the in the counterclaim paragraph fifty three through fifty six the jury found that reversed confusion had occurred and that  as a remedy for that that they were enjoined from using lucky brand marks or the word lucky and that is what we are here today about is that we sued them for their use of the marks not for different various use of the lucky brand they had the ability to go their own separate way back in two thousand and three but they chose not to they continue to to breach the greenman and use the marks in such an infringing manner that the jury found that they  longer entitle to use those marks because they completely have an inference the rights of marcel and that's the difference this read this defense would have been relevant at the time of the second trial defendant pelleas chose not to bring that in front of the jury that was a choice that's a strategic choice and now they're trying to make up for it here in this case by raising that issue completely ignoring the president value of the two thousand and ten judgment now they did not and they actually agreed to the language that was contained in the judgment it was a joint language that was created crafted between the two sets of attorneys they also agreed to waive the right to appeal so they understood what it meant at the time and what what the effect is and now they're