only advertising or horse and warm what about the statements in oral stories from free cycle that seem to rely on the definition in eleven twenty seven neither of those cases involve situations where both of would be helpful just briefly to talk a little bit of facts to understand what the products are that were we're talking to here just in a in a nutshell aluminum poles were arranged vertically or horizontally to provide a google you mentioned a minute ago when i when i suggested that you had only raised the definition eleven twenty seven initially and then you only raised eleven twenty five after the magistrate judge plus mccarthy has long advocated this we know this in error for the reasons that i'm describing because the in footnote eleven the question was whether there was a threshold commerce to even get into the trademark clause and the court said yes there is and then it made a passing comment about whether the definition of section of eleven twenty seven which sets forth the definitions that would cover the eleven twenty five which is infringement for non registered mark which is what we have here or eleven fourteen which is for a registered mark whether the definition of use in commerce should be a political two eleven twenty five or eleven fourteen and in footnote eleven  the ninth circuit said well we have passed the threshold requirement but by the way we read the definitional section in a way where would only be a political to whether you can get that trademark right in the first place and why that came up was as this court may know that there was an additional set sentence added to that definition in eleven twenty seven in  and really where you need to go and as i was trying to unpack this so to speak for today's argument that in the the second case upon which they rely network automation what the ninth circuit did was it adopted the second circuit position on whether these keyword searches could in fact constitute trademark infringement it's a one paragraph discussion which doesn't even talk about whether eleven twenty seven as amended that definition should apply or not the ninth circuit instead said let's let's see what the new second circuit did and rescue com and so i'd submit to this court that actually you need to go to rescue com and then you can see what the second circuit did there and what the second circuit did there was for the first time and the second circuit and said yes these keyword searches and that's when you can go to google and say well i will sell you the rights to this word and that if anybody clicks on this word then you can post your material and have it attached and so and rescue com the second circuit said yes that is a trademark violation but in the opinion what did it say it said we are looking in to the definition of use in commerce under eleven twenty seven as it applies to the claims there under eleven twenty five and eleven fourteen and they were they said we're going to look there are two prongs under eleven twenty seven it's a going to do the services problem which is different than the product problem here and what i'd like to point out particularly is really the point that my friends over here are arguing can how can the definition in a living twenty seven apply to an infringement context as outlined in eleven twenty five when the definition itself in eleven seven begins by saying the term use in commerce means the bonafide a use of a mark in the ordinary course of trade how can an infringing use be a bona fide use and that's a good question and that makes plain the answer to you the the appendix mis and interpreted bona fide in that context bonafide can have different meanings in different contexts and in this  do with good faith it had to do whether this was a substantive use in commerce in which case he would go to the old time application process or whether you could go to the new intent to use provisions and so it wasn't talking about good or bad faith and some things are all liesl all definitions in and discussions in eleven twenty seven that relate to the requirements to to obtain registration the right to a mark i disagree with that you're not an infringement and infringement is defined in eleven twenty five i respectfully disagree with that your honor because you tell me where i'm wrong yes i know if i can grab my mind  so i can read the exact words you know registration what i'm saying is that that definition in that sentence which it was added to the one nine hundred eighty eight does talk about which path of registration you can go but it's not talking about bad faith and to get back to your point judge when if you read through eleven twenty seven it says in the introduction in the construction of this chapter which includes eleven twenty five and eleven fourteen  something that makes you well it makes sense because there was no dispute prior to one nine hundred eighty eight that under both eleven twenty five and eleven fourteen which are the operational infringement ones that if you had a product seven twenty five years directly relating to infringement and eleven twenty seven is talking about what you need to do in europe and register your mark in commerce whether it's on a lot of people whether it's used in on a service the context is that you couldn't be more clear well and in fact i think you did it with no sense to interpret this otherwise because she could have a situation like for example let's suppose i decide i'm going to i'm going to sell chocolate bars so i'm going to advertise hershey's chocolate bars and i'm no infringement right because i'm not putting her she's mark on any product sold in commerce i'm not using that mark in commerce pursuit to eleven twenty seven but i'm certainly five whether you when it says uses in commerce in eleven twenty five or use in commerce in eleven fourteen whether you need to look back to the definitions of eleven twenty seven which cover a variety of different things including  then apply that or not and before nine hundred eighty eight it was clear that under level twenty five if it was a product you didn't need that label and the question is when they added  words definition in use in commerce and those same words being used in eleven twenty five and eleven fourteen which are within the same subchapter and so before then in the second circuit in its discussion the appendix said before that sentence added when we were changing the rules regarding the registration it was clear that you had to mark in order to have been lucky to the ones i think the  i would agree with you would judge dyke that the ninth circuit is not dealt with that question head on at this point i think this court in south code when it looked at the same language came up with the same conclusion that in fact eleven twenty seven use in commerce should apply and in that case there was a catalog internet catalog and some basic  pricing and this court and it was applying from the district court of the eastern district of virginia so i don't mean to be misleading that it's a ninth circuit but this court just looking at the statute and not even applying the circuit law said yes that is use in commerce in the definition and it should be used in the context of eleven twenty five and because it is not it there's nothing to the contrary it applied it and said here there is no labeling or just simply from having that advertising out there and we cited that at page twenty three no four of our brief form the other thing i'd like to say about that your honors and judge l to distinguish this from the hypothetical that you put out there in this case there wasn't an advertisement even what it was we had two flyers at a trade show in october of two thousand five hundred well the difference here and i think here is that the flyer said for instance in development expected in two thousand and sixteen the second one said stay tuned for more information and so it was clear from the face of these that there wasn't even a product at that point there was no pricing there was no offering there was no nothing it was the surprise is that it doesn't say that  no i think to advertise something for sale then there has to be more information that actually has to be a product that you're selling i can't say well i might be having a new chocolate bar in any year and that might be of interest to you and that that would somehow invoke a trademark problem the record is undeveloped as to why that took place because they never took our depositions on that point but i think the bottom line is here under south code is applying the statutory language just having advertising material untethered to a specific product this court applying from a district court elsewhere said no this one which does not get if your honor is perfect that it was not a good not finding i'm i only point out that at least in one context this court has come out the same way and i'd also point out that not that we're arguing waiver but before the district court initially and if you look at appendix eighty nine and ninety eight where magistrate judge del gel directs is addressing their arguments they were going down eleven twenty seven applies to eleven