or good morning your honor sir welcome judge coleman this is a case that has a lot of disagreement in it and i think it's important first to start off and outline a little bit of what we do agree about the genesis of this case is a claim for contributory trademark infringement one of the things that is agreed upon and not disputed is just as you judicially created cause of action and as a consequence it needs to be narrowly applied and interpreted another thing that i think is in agreement is this involves a an alleged trademark infringement which is kind of on its face for reasons i frankly don't fully fathom is harder to prove infringement than a copyright and the third thing that i think we agree on is is that a trademark owner or holder is obligated to be the primary police or of the of the trademark in issues all of that becomes important because my clients operated a one hundred thirty one thousand square foot mall it had many many many tenants they were all subject to a lease during the course of their operation at the mall there were times when certain of the tenants amongst more than one hundred that were caught selling counterfeit goods when my clients were notified this by for the first time it was in the form of just a order of trying to fix the problem whether it be putting up signs or doing other things but more specifically and one thing that i think is is resonates route this case is my clients on multiple occasions specifically ask zydeco for help and that help wasn't just an idle time killing request for help because as we learned during the trial of this case walking in and looking at items isn't something that most people can do and determine counterfeit goods in fact i hope not even homeland security has people on staff sufficiently qualified to identify a counterfeit good standing is that the sunglasses were being sold for somewhere in the neighborhood  sunglasses on syria trading post for a very very low discount but in fact during the course of the operation of the mall things like polo shirts were thought to be counterfeit in fact they weren't they were closed stores things like that and keep in mind that just the simple resale of a of oakley products that require a license or permit or anything it's prima commerce but the price itself isn't that big an issue because you can find these discounted things all over now according to the exotica what they were able to locate were in fact counterfeit we have to take their word for it homeland security has take their word for it there's been no conviction by the way arising from any of these seizures but as this moved along with my clients asking for help both from the law enforcement side refused for reasons i don't understand and contributory trademark infringement  law enforcement seizures of over three thousand counterfeit i don't there were ross there were letters to the your clients attorneys notifying them of counterfeit sales after undercover we're what's what's missing it would be if we did nothing but we didn't do nothing and in fact is the trial court did a great job in an enumerated passage in her order she outlined all of the things we item prohibited but the purchase is also prohibited and why that significant your honor is because through a timeline that is established by the record like in that it work at the jury determine that's not enough because it becomes a negligent standard then and the truth is the other thing that we do agree on here is that not even gross negligence on the part of my clients is sufficient to show liability to your clients ever terminate any of the leases of some of these offending tenants they did their dead level best and that's one of the requests for help they did attempted to dispossess or e on one particular tenet sought with subpoena the aid of logs a ticket to present evidence that would support the your selling counterfeit goods and that's a breach and you have to leave it did not appear in the dispossessed record denied the dispossess or e what what my point one pardon they did they made wanted to him well yeah i learned that we'd get no help and we don't have the what we're missing your honor is the ability to have somebody come in court and say yes this is in fact counterfeit it becomes a it's been alleged and what we actually did a better job of is we just simply non that was our best term the other significant thing i thought there were tenants that had been raided multiple times your honor the significant thing is if you look carefully at the record there aren't repeat offenders here the it was a little bit like has a kid i played whack a mole i loved couldn't understand why dad didn't want to play all the time but he didn't but there was a little bit of that element and all the while we're asking for like zadok his help tell us tell us tell us in the notable thing about the notice we received your honor is it was always after the fact we did this last week i guess i've got the same problem as wilson does i mean we're looking at an extensive period of time that we're looking at multiple undercover purchases multiple letters multiple law enforcement raids and seizures and they tried to initiate a dispossess reaction as to one tenant and that's it but we're the entire years we the multiple raids and in fact you need to understand that some of those occurred before my clients even operated them all the multiple letters the first letter we got just said counterfeiting is bad we said help us know the second letter gave us very specific information and said you've got i believe got ten days in which to fix this problem they sued seven days later though the fact is is our concern of the whole sale just we're going to grab a strong arm and kick that person to the curb we had leases and that's an important issue because many of the cases dealing with this are flea market cases which are license cases people go to flea markets have licenses in the person can walk up and sit you you're gone they can do it at a braves game that new in a flea market we have written leases for a one year term and there is there is truth of the matter we could've whole in a wholesale fashion walk through just throwing people out left right and center truth to you to us that was that exchange that this idea of primary policing even in the context of the tiffany versus e bay case which we think governs the court said tiffany has the primary obligation to police and the root problem is is rather than apply the second circuit decision in tiffany versus e bay the court simply said it was an online market yet this place case that this case is more like coach versus good good fellow your honor in fact is somewhat of a red herring in this regard liability was stablished because the defendants didn't respond to a motion for summary judgment in that case there was no detailed discussion of what they did didn't do or otherwise they simply didn't respond to the motion and thereafter brought it but the evidence was pretty similar there was no notice letters from the plaintiff employees several market raids and  may please the court document and i think do not agree on the presentation of the evidence at trial but first the what i would like to say is that this court's rulings  duty free and there has in many made provide ample guidance to this court for their manner in which this case a brick and mortar flea market should be evaluated  determine whether there was contributory liability and the there are six six items in those two cases which are virtual  descriptions of what happened in this case so did the did the flea market have the power to control and monitor their tenants  the flea market provide a necessary service or product to enable the fringing activities at least in space they gave them parking they provided them be till it was what is the nature and extent of the communication between the th ird party and defended well here the flea market had a manager and a a security person that patrolled that plea mart flea market on a daily basis they limited the parties that could be limited what their tenants could sell they knew exactly which tenants they would allow to sell sunglasses which tenants they were allowed to sell clothing to so they understood who was doing what and under the terms of their lease they had to do they had the right to remove them so if they did if we go to the record where would we find the evidence that this specific tenet was selling that they knew that this aciphex tenet was selling counterfeit sunglasses first at the time of the detective matthews execution of a search warrant or three detective matthews execution of a search warrant in april of two thousand and thirteen he notified m honor where there were twenty search warrants executed the defendants mr dickerson the manager admitted he went to each and every one of the  booths that was raided including those from which ray ban and oakley sunglasses were seized so within days after the september i'm sorry after the nov twenty one raid testimony was he visited each one of those boots he asked them if they were selling counterfeits and they told him no and as a core point out ms jamison said she expected them to lie because it was a violation of their lease so that's the second one the third one your honor is well first of all in the least then the letter was sent by my client on december three i'm sorry not december three it was sent on december ninth two thousand and fourteen and while they didn't say which booths were involved they said if you see any ray ban or oakley sunglasses at your mall they are counterfeit we don't allow our sunglasses to be sold at these times to these types of locations particularly flea markets again your honor there were there were three or four undercover boss in early two thousand and fifteen followed by a letter on april twenty three two thousand and fifteen and that's eight j thirteen to fifteen exactly where they were and finally the interesting thing when the raid occurred in august of two thousand and sixteen after all of the activity again on october on august eight two thousand and sixteen an l five which was march seventeenth two thousand and fifteen again on august eighth two thousand and sixteen so there were repeat offenders and they even renewed the lease of the j nine booth in two thousand for between two thousand and fourteen to two thousand and fifteen which was one of the repeat offenders involved here so they had actual knowledge it isn't just constructed thought they had actual knowledge of which booths were involved they actually controlled which booths could sell sunglasses and the photographs in the record are clear they show if you walk down the hallways of this many moment there are walls of sunglasses mounted on posts so there are dozens and dozens of sunglasses it's hard to miss and so if you have a manager and and a security guard monitoring these hallways on a daily basis that evidence is there and a just do want to point out that the the courts note that this isn't this is a brick and mortar store that you can actually see what's going on this isn't the case in bay the court was confronted with a an online marketplace we all know what that is but the interesting thing is that has one hundred million listings and they have six million listings a day and the the for the irony of reliance on e bay for a brick and mortar store and why it's not appropriate is the holding which has been held up to us for for an example of what should be the law in a brick and mortar store it says the the court said some contemporary knowledge of which particular listings are infringing or will infringe in the future a listing is not a particular fixed location within a mall these are places that are well regulated a listing is something that is put on through the internet and e bay had to monitor six million a day there is nothing here that was changing on a daily basis as a matter of fact these stores were fixed they had fixed locations and they were easily monitored and controlled and they had the right to remove under the terms of their own lease they had the right to remove any offending matter whether they were told by the manufacturer that these goods were counterfeit it didn't matter that the police told them that these goods were counterfeit so what's your response to their argument that they asked look sadik for help in the form of providing an expert who could identify what goods are counterfeit and also to provide witnesses to the undercover buys and so on to support dispossess or reaction those made after the lawsuit was filed and are our position is it was done soley as a ruse for the sake of making a be able to make that argument at the time of trial the the  telling evidence is that when they received the two letters from like zaka they never responded like zadok i asked them for information it was expected that their lawyer mr bridges would respond according to ms jamieson but he never did they deliberately did not respond they did not want help they did not want to do anything they just wanted to continue business as usual and  our position is that the evidence is fairly overwhelming fairly strong that there was counterfeiting activity going on over a multiple year period of time as a matter of fact mr  de the father of the family was informed in two thousand and eight when he didn't even own we didn't even own the striping center we didn't operate the mall he was told then by the college park police department in an e mail that was sent to him and to the mr swindle the former operator that there were seventy ever nineteen booths in april of two thousand eight that work that were selling counterfeit goods police department telling them they're selling counterfeit goods he takes over in two thousand and nine and you start seeing you start seeing activity in two thousand and twelve and thirteen of of manufacturers brand brand owners and police conducting raids in inspections and undercover boss and it was it was fairly consistent if not every month but fairly consistent throughout a four year period of time where counterfeit goods were found they were notified that they were counterfeit goods and they did nothing about it they they they say they put up a sign the jury saw the sign the jury had the right to determine whether putting up a sign was in any sense  undertaking any effort to negate their willful blindness to negate their tolerance of this kind of fighting activity going on within their within their property during a significant period of time did it at a meeting at the homeland security offices where not only did league zadok ask homeland security for help we asked a woman named jeannie johansen the exotic is representative  and offered to pay for that help before suit was ever filed lynn was that this forgotten the suit being filed it was after and i have a trial starting tomorrow in front of judge ray so i have a little bit of a brain inventory problem but prior to suit after a particular raid a meeting was held at department of homeland security's local offices mr johansen was there it's well documented in the record with the rai as i recall with it was april of two thousand and fourteen involving i believe that's correct your honor it was a combined task or yesterday federal office that was when they loaded up a tractor trailer full of and do keep in mind that each of these raids as best the record reflects were spurred on set up and ran by the exotica in mr johansen the mr mfume referred to photos in the records demonstrating all sorts of sunglasses being for sale i would have to ask then which photos because during trial a massive amount of photos were introduced from an entirely different mall operated swindle fortunately through some very careful detail we were able to establish that that this had occurred we were never able to establish which of the photos were genuine the end result your honour's is is my client's efforts ultimately work and you see by the end they're sending in undercover buyers who are not finding any glasses for sale at all and they're asking kate on the site can you do this and they're being told we can't do that because it's against the mall rule so with no aid from the person who is the company that is primarily responsible for policing the trademark we were able to make it work mayfield talks about the renewal of tenants again the record reflects that both jay five certainly was renewed different tenant were there any tenants who had been tenants when pat swindle operated them all who were still there during the time period when we're talking about all i can say your honor is almost certainly almost certainly there were there was that overlap many many many left but i would just say with almost certainly i do not have a specific recollection of the record of whether that was detail but i would say almost certainly some of them would have been holdovers some of these raids do run together because one of the raids which was discussed extensively at trial was raid that occurred while pat's window was operating the mall before we had any ability to step in and do anything we don't know whether there were any tenants who were raided under pat swindles lot who were subsequently the subject of undercover purchases and raids i do not believe so your honor i die my recollection is the effort was made in the transition to uses it use it as an opportunity to run things through a screen and  things cleaner and tighter and i know a lot of money was put into the mall to elevate it but i would be remiss if i spoke as fact as to that the bottom line is as mr mfume said that a jury could be intitled to believe that my client should have done more and that's a negligence analysis whether you had to do more given the circumstances this is willful blindness which courts have referred to as ostrich like behavior there was no ostrich like behavior here at all and there was no and there's no way to draw a logical distinction between bricks and mortar and online stores the fact is e bay has an easier ability to get rid of people than my clients did because that's a license also they can the list like that that's part of the listing rules yet the court said you gotta tell them specific instances because tiffanie your the expert it's your thing