trademark office specifically trademark protection so their senators or their evidence with those fairly general identifiers were recognized the industry is representing the other you may not at the end of the day the judge says it doesn't meet the standards but you it's it's not so frivolous as decide no jurisdiction it's interesting to me it is so frivolous as to say there's no jurisdiction your honor the jurisdiction that's correct so what is the test for us to decide whether the court had jurisdiction to adjudicate because it seems to me that had jurisdiction to a dismissed on jurisdiction on the face of the line correct that your argument yes there is nothing in the complaint that alleges any federally protected interest that's been recognized by any court in the country merchants with fires code with fires website and there isn't a case in the country that protects a did main name which is the coupon code that's all that is a demanding name from being linked with anything in fact we cited a four decision in our brief that makes plain that even if you have a trade mart name and intimating name people can still link it whether you like it or not and there's nothing about the number six  that triggers public recognition that oh that's what far the fact that a few merchants might have only goes to infringement it doesn't go to the stablish one of a mark whatsoever that's clear from this court's decision an amazing space  it would create a whole new genre of trademark law to recognize this as a colorable claim there just isn't a single precedent for it in any court it's not in a day star squarely forecloses the alleged false authorship of a new communicative product which these ads are so we think first it's clearly foreclose says a practical difficulty adopting a special definition of origin for communicative products is and then he goes into making an example but then he says in this case which you know it is about if they started simply copied this series as crusades in europe sold a disc you said in europe of up changing the tire packaging which mean it's the competitor's name on it it is hard to have confidence in respondents assurance that they would not be here in a latin america was of action been presented just as a recently had b and whenever the first broadcast were without changing anything so it looked like it was coming from the other company that that may well have led to somebody suing on the la with fires billing trying max didn't get any traffic from and didn't get any money from it in fact there's good reason to think it was all with fire to begin with they got hundreds of violation notices with respect to their merchants and were put on google's list of problems early on anyway the company had only been in an active a few months when they solves a lawsuit that's not even long enough to get any sort of trademark protection my colleagues may have a question for having me ask you about damages you want to address the way damages were computed and just what evidence to me that would allow us to  damage and yes there is no actual evidence of damages texas law requires damages be proved with factual data facts figures to a reasonable certainty in this case the  numerical value to that i mean there was no evidence of what their actual income was there was a trend analysis based on only a few months because they'd only been in business a few months there's only ten pages of evidence with respect to their damages at all development as a company and make sure everybody did that for the rest of the time period affected as they argue by the actions of your pride and how damages were tried to be shown or something else in this case that's that but they also conflated in their damages calculation income from direct advertisements first as in direct advertisements and overlap those so that you can calculate in fact they basically threw away of their damages for the direct ads because that was not what they were focusing for they claimed that they were delayed six months in generating their new coupon company business and of course that's a new and speculative business they had nothing to anchor what that was really worth and there simply are no time sheets there are no income tax returns there is no documentary evidence whatsoever as to anything from which somebody could actually term damage under texas law with the recent all certainty that's required by the cases with respect to any of the damages the jurisdictional issue i think is obviously the most important because everything else has to be dismissed if the court did not have jurisdiction and to this plane colorable under the lanham act would also said there were over three thousand such contracts and it wasn't even feasible to produce some but not a single contract was executed what they're talking about are the terms and conditions things that appear on the internet that no one ever reads and the merchants continued to do business with with fire even after the alleged violation notices were received blumen it was the only actual violation of us that they put into evidence and they were still doing business with  their showcase issue what opponents call the most important issue is jurisdiction it's also the only federal issue in this case there are numerous reasons survived challenger trial survived fifty a and fifty b motions and actually there was judgment entered not with any money damages but in terms of liability and the lanham act claiming there was bench briefing on it there is extensive argument on it the notion that there wasn't a substantial federal question on the lanham act claim is simply wrong i don't want to spend too much time on this issue to i really do think that it's fairly open and shut just actually but they wanted to show point i'll make is your honor asked counsel to provide their best case on this issue in the answer to that had to do with cases regarding the substance of the lanham that claim why they think the lanham act claim was not am more than happy to entertain any questions about the substance of the lanham that claim about daystar about any of that but the important cases here are the jurisdictional cases they cite only one case where this circuit has declined jurisdiction after extensive litigation is at the apollo that case did not involve any thirteen sixty seven supplemental jurisdiction issue the case th cite settlement funding l l c the rapid settlements was a case where it was discovered later the appellate level that there was no diversity jurisdiction and there was no federal claim at all so there was no hook to support subject jurisdiction but where there is a federal claim that's been litigated extensively for years in the district court even if that federal claim is ultimately dismissed by the district court obviously what didn't happen here it was never dismissed and there is a jury verdict in judgment on it it would indeed be an abuse of discretion for the district court to remain the case in light of supplemental jurisdiction that's the last lesson from brooke shire brothers a day coke products which cites a number of other cases including the teesta the island records newport the sears daddy b oxy what the berkshire court in the circuit called well established law when you have a situation like this years of litigation over federal claim with supplemental pending state law damages texas law says the measure of damages is lost but we're seeking a loss of profits damages awarded to seek a lost profits damages award you have to establish the fact of some damages and then you have to establish we established lost profits as follows and there's really two components to it there's two claims interference with existing contracts  contracts with fires damages expert c p a jerry jordan testified at pages fourteen for ninety seven to five hundred one of the record that he looked at with tires financial statements profit and loss statements tax records google data other data from the current trend the next and what he termed google geographic performance data using that data and in addition relying on representations from the executives and founders of the company chuck hall and john browne relying on the testimony of chap hall and john brown if he did two different damages calculations for interference with prospective business relations what he did was look at the delay that with fire experience from the launch of their coupon doco platform that resulted from the actions that were the basis of liability in this case there was testimony and evidence that the coupon delayed by six months what the damages expert jordan looked at was the ultimate price the profitability of work fire before the altar and the relationships  fire was leveraging its direct advertising channel then the ultimate profitability and revenue stream from the coupon doco that eventually launched six months later he looked at the campaigns they being generated in his ad campaigns which both sides use as the basis for damage models are the lifeblood of these companies and if the marketing space and he determined based on that that work fire suffered three hundred thirty four thousand dollars in honor in the evidence of lost profits it correlates with lost campaigns and bo last campaigns an average profitability per ad campaign in extrapolated that profitability per ad campaign into lost profits that is what both sides damages experts that in fact there i'm misunderstood and i thought that when they enter into the existing contracts the measure of damages was the time the value of the time that two individuals or one individual spent dealing with all of the facts of life so perhaps i can attempt to clarify for you ultimately damages in this case lost profits comes down to the advertising campaigns but the time that was spent due to business interruption to the activities of the appellant's also underlies damages for the following reason it was those activists this is a small company essentially run by two people it was those activities that caused them to divert resources from trying to generate new campaigns for launching this new platform which ultimately was immediately profitable and successful for the company so the reason why the campaigns were lost is this diverted energy but the actual lost profits calculation is based on a combination of what campaigns were gained  in this regard isn't jerry jordan's testimony starting it i believe page one for four nine six of the record the crux of the palance argument on damages on appeal is that there are not in the record tax returns and other financial statements from work for texas law is clear for example e r i abuse when they are from two thousand and ten that the actual presence in the record of the supporting documentation is not relevant it's not necessary to support an award the actual supporting documentation goes to weight not admissibility invalidity here in the record that we can go in an expert point you to your honor is mr jordan's testimony which as i said starts at fourteen for ninety six or ninety seven i think it's also relevant that their damages expert brant person also testified about the value for each individual campaign on there and they dotted the exact same methodology and also endorse the notion that individual campaigns have profit and loss value associated with them i'll point you to mr jordan's testimony mr person's testimony and also mr hall my client c e o although he didn't go into the nitty gritty dollars and cents of it did certainly testify and loss of campaigns is that is the measure so you've got to have some valid tech methodology for putting a dollar amount on each last campaign or globally it's tied to something that guesswork in the way that mr jordan performed that analysis was he did a yardstick method of before and after he looked at before the misconduct occurred how much profit per campaign basis then he looked at the effect of the misconduct on the number of campaigns generated so after finding that the dollars per campaign and then the  on the campaigns generated he was able to calculate the damages figure by applying that dollars can't per campaign figure to the campaigns affected by the misconduct that's reflected in his testimony at fourteen for ninety six right i'm sorry if it's for the test which starts at fourteen for ninety six and continues through i think in relevant the entire test was ten to twelve pages in the record but the relevant part of thin continues through fourteen five o two are there any other questions about the damages calculation i would like to speak briefly about waiver i think that we do raise the issue of waiver and as interference of perspective contracts they did not renew that motion at the close about the dense and they did not explain at all what they were actually challenging and this case is unique and important in this regard because as this court recognized in the quinn case what a party can't do is not squarely contest an issue gamble on the jury verdict and then come back and argue about it later and that's exactly what they did they they agreed on the proper way to calculate damages in this industry they sponsor an expert who did the exact same thing the expert said that he did the exact same thing the judge surely did question the damages analysis the judge practically bad opponents to make a motion on damages under rule fifty eight but they didn't and frankly your honour's the same reason we didn't it's because we both sponsor the same damages analysis and they knew that if they were it successful   limiting our damages eliminate theirs and we had a two month two and a half million dollar damages model they had a twenty million dollars counterclaim and they wanted to gamble to the jury on this claim the primary basis that district judge and their brief point to why the purpose if not the letter of rule fifty and fifty were satisfied is the district court questioned the damages analysis i will say only that the district court question the analysis primarily before after we put after apple is probably the case before appellants put on their case before additional evidence was heard from their damages expert of our extensive cross examination of their c and they didn't in the light of the court's invitation actually take them up and challenge damages squarely the flint co case is very clear that the court's statements i don't suffice under rule fifty and there's good reason for that there's the parties are entitled to know what's actually in dispute what the other party is going to challenge not a suicide bomb type challenge from the judge and mind you of course the judge was ultimately persuaded he entered judgment on this claim in damages so whatever he said on the record during the trial he entered judgment under flint co his statements don't get them across the line in this case there was no notice that our damages model was disputed because they adopted the exact same model a say briefly that the their best case on this issue is the logan case it's the case that the district court cited the difference between our case and logan case is of course that not only did in this case they make an extremely conclusory fifty a motion but after the district court to put them on notice that there are various and damages model is a risk they sponsored an identical model that's waiver under the rules th turning briefly to the other tort claims just so that your daughters understand the theory of this case this affiliate marketing space is a unique industry but it's been their brief that their company and their leaders had managed their company profitably for fifteen plus years using the exact same business model we did provision of online affiliate marketing services so this is not a case like the texas instruments be tele trying to case where there are some do and untested products where it's impossible to forecast  what the damages might be this is while it's an online industry is an established industry the business model frankly is very straightforward in this paper clip online advertising industry bit established by our company even in a short period i would submit that the damages in our case in the theory in our case are most similar to two cases one is the home ok case which we cited extensively in the brief the other case that i would point your honor to is the amigo broadcasting case the legal broadcasting court faced a lot of the same arguments that opponents made no broadcasting involved the broadcasting company that was only twenty months old with fire was relatively young although not quite that young amigo broadcasting put on its damages with evidence that they expected the programming and ratings to grow by sixteen percent very similar to that evidence that we presented with regard to the expected growth of advertising campaigns what held was that just because this was a new company they could prove profits because it was an established industry they also held that ratings could be analogous to profits the same way that campaigns are now against the profits here the notion mentioned by appellants that we haven't proved any contract that was interfered with is simply wrong while with x do have thousands of underlying merchants for whom they place advertisements this industry like others involves an intermediary contract or a few intermediary contracts these large contracts commission junction share or sell it cetera are in the record specific terms and conditions of those contracts are in the record and it was those terms and conditions the terms and conditions that bar companies from placing certain keywords in their advertisements that try max and laura woodruff attacked with their impersonating ads this fits squarely in the doctrine of intentional interference or tortious interference if it's squarely under the rubric of their contracts that issue they were interfered with i agree with the panel that the most substantial issue on the subpoena is damages but we submit that that issue is waived that both parties sponsor the same damages model they who tout they've been in this industry for twenty years agreed that this was the proper way to measure damages in all of the cases they cite great pines holt texas instruments still lutie philips horizon in all of those the issue was that there was no consideration of objective facts figures and data here are expert consider financial statements damages were very different from what fires for example we didn't claim loss of energy which was their primary focus for their damages the newness of their company and the objective lack of objective facts and figures come and defeat any of their claims for damages we also put on a witness who testified and an actual merchant that we had done business with who testified what the value and how much she had paid us for a year for example for an ad for causing campaign they put on no intermediaries or clients whatsoever and the contracts that they claimed they introduced into evidence the intermediary contracts  not the contracts that were lost according to them according to them it was blue max that gave them a terminations notice and that was an end to march and not an intermediary contract and blue might still work for them  addressed all the waiver arguments in our brief didn't hear anything new there that i need to address for the court unless it has a question on that if this case doesn't fall on subject matter jurisdiction than it must fall on damages they had no evidence of any profits at all judge owen as you mentioned there are no actual documents or data in the record other than that they were experts conclusory assertions of this few months old business and the keep on company experts conclusion opinions there were no evidence of actual profits there are no financial statements no any kind of profit or loss statements anything like that that would be substantive evidence only the experts opinions we distinguished bunch of brothers in our in footnote none of one of our briefs they are the court did not have original jurisdiction in the on the law bill of the finding the cause of the matter on remain and less that two attorneys fees and perhaps some some other aspect of the case this case is very different than home oki because in our here there's no specific contract identified with respect to any terms that they would have been paid for anything there are no income tax returns in any kind of financial documents or even time sheets and they admit their expert admitted that he did not even deduct when he was counting those two thousand hours that they spent helping assist with the trial or preparing for trial or tending to other companies click fraud complain or the time they spent with anything other than trauma x and there was a substantial amount of time devoted to th whick fire was in business for less than a year when it file this lawsuit and the law is rightly suspicious of untried enterprises particularly when there is no actual evidence of financial information and on which the court  evaluate damages