the issue of whether a use of a trademark constituted commercial use under the lanham act should be reviewed for based on the totality of the circumstances of the use and so what the district court did in this particular case was it look specifically at the manner in which lay few used my client's mark on only one particular web page that's associated with a larger website the u r l being which he's talking on and the district court refused or did decline to actually and analyze how that particular web page played into the overall use of the website in its determination that this was actually not commercial use under the lanham act this was error because this is supposed to be summary judgment court supposed to look at the website itself and the substance of the website and give my client the favorable inferences and if you look at the sixty which is probably the best image of the about web page you' see that the information contained on that particular web page that again is linked to the overall web site is not just historical in nature but is instead it constitutes essentially an advertisement for the laiki product for the ban labels that was they were being sold by lakeview itself as a consequence the information that's contained on the about page it advertiser actually encourages visitors to the website to contact banquet which is the l company and find out about the quality of their products find out about the new products that are being developed and this was done right what is it then chargers this is just connected with patients  well i take issue with the term disconnected web page because it's still connected to the overall website but yes yes the about web page i mean it's not that it's only reachable it's not reachable through the website throughly by by going onto the general website you have two actually specifically put in a u r l search search for that particular page yes your hon somehow have to know that that's how they look the underline and all that right yeah the u r l as of april or may have two thousand and fourteen navigational header and footer of the website was changed was edited by lakeview to remove that outward facing link so any visitor to the website could then just click on the link and then access the about web page however the about web page was not deactivated from the server nor was it disconnected from the internet which would have been the result if it had been taken off of the server but so therefore what i said not if it's deleted from from from the internet you wouldn't get a four hundred and four message if the if they deleted it in that sense if the i thought the index was sort of professional well the person certainly the you know you because i got them all the time yeah and if that particular web page hemant deleted your honor it would have been you would have got a four or four error or there could have been other measures taken to mitigate against the confusion that would have been caused in the search indexing because there are resources available to webmasters in order to mitigate the effects you have any any count of any sort as to how many visits there were or could have been to this as i read your femia theme was was things could happen but i didn't see anything that indicated that they ever had or how much they ever had right yeah something no you didn't judge boggs and the reason why is we asked for that in discovery specifically for web analytic information and like you said we don't have any and we did they didn't provide any to us in discovery and so that  information's not contained the record we don't know how many but do you or are you saying they were lined that they really had such information or simply that they that they made a good faith answer did you try to i mean are you are you contesting that that they should have provided you with something that you know they have that's not an issue we've raised on appeal your honor so we're not we're not saying one way or another whether their ass or their assertion was true or not we simply didn't have that information it was what miss timi does talk about is that by virtue of the web page remaining active it certainly increased the visibility of banquet cheese in any kind of search that would have been performed on the internet and the search results would have come back with with banquet being placed higher detail if certain information produced in discovery which we don't have but in looking at the website overall it certainly tends to look and appear to be a commercial website because it is advertising certain products and the products that are listed on the which he's web site itself the monterey jack cheese wheels are also the same products the exact same products that we learned about in june of two thousand and eighteen were being advertised on the lake you cheese dot com website and this was after we had all argued summary judgment and briefed it but we found this particular pack size sheet that's also contained in the record and that these individual packages of cheese so these individual bricks contain the nelson mix creamery company mark right on the labels and so for i have a difficulty squaring on summary judgment how the district courts analysis that the use of the mark on those packs ice sheets doesn't constitute commercial use because that would be a traditional thing it but i do think that the use of that particular that particular phrase the trademark phrase is visible on the labels i do think that if you put up on a computer and i recognize that when printing things i would up and you have eagle eyes right or if you what one of the interests that mr gagliano who is the president of lake you described in his deposition was that he wanted the banquet label that was one of the things that interested him in engaging in the transaction in two thousand and twelve and as a consequence he started using those labels for a period of time starting shortly after they had gotten the factory in salt lake city ramped up and he was selling under those specific labels there was a limited license up until two thousand and fourteen but what the information contained in the lakeview cheese website indicates is that this this advertisement of these bricks of cheese that you or i could purchase in the grocery stores in southeastern idaho or even in utah or throughout the country i believe would actually you could pick them up and you could see that it would say nelson ricks creamery company founded in one thousand and seven with the backs of two spring wagons i mean so all of that information is there on those individual labels and so the use of those of the trademark in commerce i think is almost conclusively established based upon the pack size sheet now at least from our perspective now the other issue that the district court wanted relied upon was finding that there was not a likelihood of confusion and this of course is a critical test any lanham act claim is whether there's a likelihood of confusion but i want to draw the court's attention to the district court's decision and as a footnote it's footnote two and it's in that footnote that the district court admits to weighing the evidence under sleep craft and this court has eight sleep factors way were when in my client's favor three of those factors were not even really disputed by lakeview and those three were the internet troika that this court has recognized have greater prominence in the consideration of whether there has been a likelihood of confusion established by a by a plaintiff and those three are of course the the similarity of the marks and the proximity of the goods and the use of the internet as a marketing channel leaf you didn't dispute any of those three and so  these factors that is a pliable test and the sum of these factors go in favor of a claimant of a plaintiff like nelson ricks then it's up to the jury to make the ultimate determination of whether there has been a likelihood of confusion and therefore an infringement it's not up to the district court on summary judgment to make that kind of ruling the discourse opposed to just say look the given these facts intensive inquiries we have to allow the jury to make the ultimate determination and the district court then went on and looked at three additional factors and said that they weighed heavily in favor of lakeview however those three factors intent to misuse the mark actual confusion in the sophistication of the customers are actually not all that important because this court in go to dot com versus disney explicitly said as to the issue of intent that even if disney had acted and was as innocent as a fall on that it would not prove anything as to whether there had been a likelihood of confusion moreover on the actual confusion issue and that particular element under slee craft the if i had if my client had evidence of actual can then that would be something that would be tend to show the likelihood of confusion but the absence of such evidence does not work the other way the converse of the propositional no i don't think it does so a single instance of confusion that some evidence of little likelihood right the court and brookfield expressly said that not it's not noteworthy that there is no showing of actual confusion that it's not a noteworthy finding what we have is at least in that context where there is no actual confusion we have some evidence of probable computers unlike the surveys where people go and  how it indexes these websites that confusion likely occurred and that's on page i believe it's one hundred and thirty five i thought of the records and couldn't say that the reason that this is why the counter and put a lot of weight on her on her evidence is that she couldn't show that it was showing up for that reason right but again this is more probable than not and that's the standard on a civil case and so the jury could easily listen to mistiness testimony that confusion likely have any evidence as i understand it there as to why the this was still showing up on google which can say one hundred percent that this was the sole cause and that's not something much fancier than that i  really can't say well i think miss timi testified in her declaration that it was because certainly that the role that the about page had in bumping up the visibility of lake hughes website was it did in fact play a role in that confusion likely did in fact occur and so he disappeared and understand that point did she say that because this site existed even if nobody ever visited that site it would have cause people to visit other sites related with defendants know your honor i shouldn't say that no no no instead what she did say is that because how this particular website is indexed it would increase the visibility of being what she's when someone were to run a search for our mark for my clients mark and as a result it would be more prominently displayed and people could then affiliate bank with cheese with nuts or extreme which their customers are you speak you know because i thought we would focus on the wholesale market as opposed to the retail market yeah so that was one of the issues the judge and i actually focused on was that both companies nelson rights and life you sell to wholesalers but the banquet label the way the the banquet label itself is actually sold in grocery stores and that's what the pack size sheet actually indicates and so under what i understood the jurisprudence to be is that when you're looking at the sophist relative sophistication of the customers you look at the least sophisticated customer and whereas wholesalers may be more sophisticated than you or i when we go to pick out a block it was a folks who are making the purchasing decision based on the use of the mark right now i don't think there was any evidence that folks who are showing up in the grocery store are going to be confused as to that's what i thought you know  and i think that's right as well for i think we don't have evidence that the people in the grocery store however i would say that the use of those labels that are indicated in the pack which would be the labels that we would see in the grocery store does use our mark  they were published on the website that's correct there they were on there the but the particular document as i understand it was a document that was sort of you know offer of certain products for certain prices tells us yeah i think that's true but i think that the evidence itself that i mean that's what you would actually see in the grocery stores were those kind of bricks of cheese so you're saying that even though there's no evidence for those you're innocence or perhaps the neglect in terms of leaving that on the website has no bearing on whether this is actually causing a like you as a carriage and whether there's any likelihood that they were actually in the end and stores that way and that may be true but ultimately in terms of the determination of a likelihood confusion that's soldiery question it isn't part of the like i mean we talking about this is though it was you know internet kind of thing and you do mention that but from a realistic point of view how much difference different would it be than having some left over brochures that might in fact be in a grocery store up in nampa or stanley idaho and and no place else would that still create the same likelihood of confusion that is since we have no evidence as to how many people ever went to this site how difference would it be from having some leftover brochures that you didn't pull off the shelves at some general store web site without hands i think if you print it off in color yes you can i printed it off in color and i could read what would you print i think that i think it is ability to disarticulated that from any other factors what she was able to do is affirmatively testify that because they were about page remained on remained active and based upon how google does its indexing that that would in fact increase the visibility as a result of the search terms so there is a role that it does play and so i agree she can't just articulated from any other factors but from from the other factors but she can testify affirmatively that he did in fact play a role in boosting the visibility ok morning your honor sara cohen on behalf of respondent late if you cheese this is really an exceptional case it's presents a unique situation where post sell inadvertent and unknown use has been bro a trademark claim i want to clarify a couple questions from your authors one with regard to the can out page how many times these pages were visited but there was no evidence simply because our client had not triggered that as part of their web page is something if you want to count visitors you have to actively trigger that that information was not available but i want to talk and just clarify some information about the two incidents at issue here the st is the about us page about us page our client inherited the web page in two thousand and twelve when we bought the bank what brand and the cheese company factory in salt lake city we had a limited license to use that mark for period until it was terminated in two thousand and fourteen and the reason we had that right was because as part of the packaging purchase of the factory we purchased thousands and thousands of banquet cheese packages that r t had a commentary about nelson creamery company on those packages and so we were able to use the that name and to use those packages until that limited license was revoked and it was revoked in two thousand and fourteen about the time when the packaging expired and when the cell of nelson rex creamery occurred to the appellants at that point in time we stopped using the packaging and the about page was disconnected and from our perspective our clients thought they had taken it out of use in commerce because they disconnected from the web page if you look at the website it's only a couple pages our clients processed cheese they're not yahoo they're not google they're not amazon they're not internet specialists they thought they had and the evidence and indicated he thought that page was gone as soon as they were notified two years later as soon as they were notified that that page was still accessible they immediately went through and deleted all the references to history of nelson ricks and bake with cheese and then when the license to use nelson rex was gone they had scraped that plaque off the wall they'd thrown it in the yard or in their you know in their storage yard and they thought it was out out of commerce and then a few years later nelson rex comes and says hey we saw that plaque in your storage yard you need to stop using that and then we destroyed it and then they sued us with regard to that pack label  photographs lakeview cheese again on their new web site side for their primary company did list those and you've seen that in the in the record those photographs were photographs of the banquet cheese packaging that they had inherited in two thousand and twelve during the time frame which they had a license to use that as soon as we were notified that those pictures had that mark on there we took that page down and now your honor you get a four hundred and four error if you go to look for those pacs the site sheets only views site as to their visibility i will tell you that in order for me to see those i had to pull them up on my twenty four inch high definition computer screen in order to read those i don't think you know from a legal perspective or a factual perspective that that constitutes use in commerce or with relationship to a cell i know your honour's have have read the briefing the lanham act requires that all four requirements be met in order for a finding of trademark abuse to have occurred in this case the  primary the primary consideration is confusion and i refer the court to the mall tight time machine case from this circuit where they have noted that the core element of trademark infringement is whether the defendant's conduct is likely to confuse customers about the source of the products in the multis time machine case the court did note that likelihood of confusion can be found and determined on s judgment the court said that if the trademark holder is unlikely or if the court is to is able to view the evidence and determine that it's highly unlikely that trademark confusion strictly historical information is quite right i think the i think the district court may have been confused in its analysis between whether it was talking about the entirety of the website or the disconnected about us page you know we're right in the various pages is largely in the present tense and it's not strictly stock your honor is correct the about us page as it existed in two thousand and sixteen when we were see the was the exact same about page that nelson rex company had created whenever it historically created that about page that about page had not been changed since our company had inherited that web page and in fact if you look at the page it makes reference to the historical nelson rex company and i believe that if you if you look at the reference to the ownership it refers to the past ownership that had expired several years ago is how he writes crime rate company that is a large nelson rex and never changed by us until we were told that it was still available on the internet and then we changed it to lakeview instead of nelson rex so use in commerce i i think it favors us the court may disagree certainly the slee an appreciable number of people who would be confused by this and in this instance both with the about page you would have to have an appreciable number of people who actually find the about page and then are confused by the about page now this is a very small industry most virtually all of the cells are done through wholesalers these are not cheese products that you would generally find in the grocery store there cheese products if you went to a restaurant in order to prepare in order to some food and it had cheese on it people who repackaged cheese it's not a product that you're generally going to find in your grocery store so the whole sellers who buy it would have had to find the website be confused by the website and not realize that and again it's a small industry not realize that hey instead of me thinking that in two thousand and sixteen the bank which she's a still affiliated with nelson rex the most likely outcome would be that they think hey greg  aglio has failed to update as web sites and see what she's that's the more likely scenario than being confused about who owns which company as far as the pack she sizes you have to actually click on the pack she's the pack size sheet f scroll through there blow up the picture and notice that on the packaging of the bank which she's labels there's a reference to nelson rex and then be confused that you know that they were still affiliated rather than realizing that the company had been sold for years previously  intended when they disconnected that from the web site that that page no longer be accessible again i would say if it's similar to a plaque on a building understand that the internet is a new world compared to the physical world and the law may still be catching up with that but the but the obligation and it's a new area and it's not it is not detailed in any cases in this circuit or otherwise this particular issue but the burden that the court would be putting on purchasers of longstanding companies if it said that as put as opponents have requested that once you buy a company you're required to affirmatively go on to the internet and find everything services this is said to be advertising so it doesn't matter you said at one point in your breeze well the snow has to be on the actual product but that's not true with regard to th therefore what they're for it they didn't use it because they meant to get rid of it or they were are what i what i think in there i think there's some confusion in the case are some overlap between the use of in commerce or use in connection with the sell of goods sales so it wasn't necessarily to line up internet line of cells but it was their advertise their products without question their products were advertised on the back which she's dot com website our position would be that with regard to the page as a whole or the website as a whole but then to the unique about us page when lakeview cheese attempted to disconnect that about page from their web the web page the web pages as a whole they were attempting to remove that from commerce or from the connection in this in the cellar advertisement of goods that's what they were attempting to subject and we're not only in the internet context than any conscience in terms of somebody who says you know where we're trying not to use this but you're right we scoured the internet and we pointed in our briefing to the only two cases that we could find and they are not perfect cases for the situation it is a unique situation in those cases where the th th century versus fox case and the school asked a case where they talked about where fox had  purchased the rights to use x men and th century fox still had some x men related websites that they had registered and the court had said that those dormant that dormant web site use was not trademark   were not trademark violations but there is that there's not a further question i ask your colleague is is this any different than something physical that you had the same sort of purchase of something you have some legacy brochures that have been in office and dentists offices or whatever and you say ok let's recall them let's put them all away and it turns out that you know you didn't have all the right dentist so you still had these legacy brochures somewhere is there any reason to treat the one any different than the other just because the internet is involved now a judge box and i think you're i think you're spot on there you can do the best that you can to try it you know just to  claw back what's available are readily available but it's not a perfect world and you know the plaintiff as sarah palin's have said that we should have gone out and affirmatively found every business directory on the internet and you if you are using it if you have purchased the company and they have one hundred years of material in the world your not using that material simply because it still exists but if you then went out and affirmative advertising i know you are i don't think it does and you regardless i don't think that the intent is even really that important a factor still under the under the sleep have some notion of intentionality use well yes and i think there is at least a latent notion of intentionality and certainly