as i mentioned in the briefs and i think should be apparent from the review of the public records this is not a typical plaintiff that stands before the court this plaintiff has made a business of suing karaoke jockeys people who perform karaoke songs rose to sing with it bars and other nightclubs they've made a business of suing these defendants for trademark infringement which more properly might sound in copyright in this case though aside from all of the other public equity kind of issues regarding this plaintiff in this particular case the plaintiff acted in a way that is just i think it is it defines what it's not an ordinary case this is not an ordinary case not from the start and not to the end when the district court judge decided to deny us attorneys fees for any of the relief that we saw whether it's under rule fifty four whether it's under ruhleben or it's under rule thirty seven he basically used a standard which now  been updated the sixth circuit standard eagle limited certainly must now be viewed through the supreme court's recent octane fitness versus icon health which came out in april of last year after the judge's ruling circuit has had only one case that i'm aware of that met that cites this particular case in any case in any situation octane fitness emphasizes that an exceptional case for attorney fees does not mean it has to be a sanctionable case something much less or much different from just merely a sanctionable case octane fitness says the court has to consider all of the factors in the totality of the circumstances to whether this is the case that's not run of the mill out of the ordinary and the sixth circuit clearly has been more restrictive than that and basically require in an oppressive standard essentially a baseless case from the start for a defendant to recover attorney's fees right so based on that those factors alone under octane there's a number the judge's ruling was primarily based on the fact that the plaintiff was able to per marshal enough evidence to survive summary judgment which was decreed by this court in his previous appeal in this particular case a number of the factors that i think are crucially important to understanding what's going on  here occurred early in the case before discovery and then there's also issues that occurred at the time of trial and during the trial a used a few examples that i'm not aware of the district court specifically pointed out in particular evidence that was alleged in the complaint of hard drives that were allegedly infringing that were purchased from my client and that were later testified about in an affidavit by the president of slept on those hard drives never were produced to the defendants were never able to be analyzed by the defendants so the evidence on which the case was based on from the start was kept from the defen only found out that there was motions to compel at least twice filed about getting that particular evidence because we didn't believe it said what the plaintiffs said it did we only found out at trial that an agent for the pla turned over that evidence to one of the witnesses for the plaintiff in a competitor of our client and that person had so bet material so the defense never had the opportunity to examine that material and only found out what happened to it during the trial the defendant spent thousands and thousands of dollars and multitude of motions chasing after that evidence which they thought was exculpatory and they find out at the trial that it been sent off to somebody else that doesn't seem to me you know it when we're doing a civil case intellectual property law we sometimes don't see things the way the rest the world sees them but that's certainly not a usual thing trademark case in addition to that the plaintiff filed for a default judgment and mr slept himself entered a fat affidavit that said i've looked at these hard drives and they show infringement or it turns out in his testimony and that he had later recanted in another affidavit mr slope never actually saw those hard drives he says that they didn't exist or they never were in their possession he said he was mistaken to gain an advantage that is not a normal course of business that's not run of the mill that is a factor that the court should have addressed as something that would would support the finding of an exceptional case if you look at bad under the lens of octane fitness that is certainly something that's not in the ordinary course of business as the standard octane efter octane it the standard is more that  is supposed to look at all factors in the case whether you know there was oppressive and whether there was misbehavior on the part of the defendants or part of either side whether there was a public interest in deterring this kind of behavior in the future and one of the reasons i mention the litigation activity of the plaintiff is that public interest specter of be touring this plaintiff from pursuing this kind of trademark litigation over and over and over again is a very important factor that the court should consider does this plaintiff practice fair play in a normal course of business i think the answer is and we've cited in our brief and i said we cited in our brief below that this plaintiff has been at least whether or not sanction but reprimanded by courts for its behavior in a number of different cases right there's a recent case in in california where they said they thought it was they take trolling to a new level and i think that's actually a fair assessment of the of the  facts there was a case in nevada where they sued you know more than ten defendants if i remember the number correctly and those defendants had no connection one note of the judge there said they had to be separated out in individual cases same thing happened in a lesser extent in florida right in essence octane says sanctionable conduct is not the appropriate benchmark that's a quote from the case it's the district court needs to assess all the factors that would weigh in to   in the totality of circumstances whether it's appropriate to could consider this case not in the ordinary course of business in addition to that rule fifty four attorney's fees one of two other aspects of relief that we asked for that the judge didn't really analyze to any great depth is the defendant's position is there was no reason that we had a trial that lasted thirty days in that they were here to appeal because the plaintiff had in equity at the time that trial started there was an affidavit entered by a representative of the plaintiff steve boone earlier in the case that said we don't believe that the defendants  selling sound choice materials on their hard drives anymore right the the representative that supposedly lost the hard drive said that you know it doesn't show what we want to want to show mr slept during his testimony didn't make any statements that would say this particular defendant is engaged in business activities which are currently in friends in our activities under e bay versus markets change their it essentially be no possibility of this plane of getting an injunction issued under those conditions why couldn't there be an injunction prohibiting future if the future conduct was likely to occur and it would be appropriate but the plaintiff essentially did not argue any facts that would support such a finding the record is bereft of any argument about irreparable harm which cannot be just simply presumed on the part of the plaintiff it has to be shown is how they're being harmed there has to be some analysis of the balancing of the hardships between the plaintiffs in the defendant if and if they injunction were to be issues and they also had to look into those public policy issues the plaintiff didn't attempt to make any factual assertions to any extent that can be discerned by the defendants that an injunction could have been issued after the trial happened so what our position is is that this trial was simply an exercise in figuring out what the status of the defendant was so they could sue mcginn three months later right that's not a proper purpose of the trial we think under ruhleben we informed mr harrington prior to that commencement of trial that we don't believe you have a case to get a permanent junction therefore you should drop the case mr harrington argues that that doesn't qualify as a the ruhleben warning motion so we shouldn't be have ruhleben sanctions available but certainly the court under reluctant can and on its own account without the defendants taking a to the letter process of imposing sanctions for the cost of the trial that was really done just as an exercise to see what the outcome might be you know they're there thirdly a strong public policy mitigate against your position i think there's two questions that you asked there and i see or to my time's up i'll try to answer and very quickly one is certainly there's a public policy interest in people being able to protect trademarks the defendants don't have any any quarrel with slept on trying to legitimately to protect a lawful trademark but for there to be a permanent junction issued the plaintiff has to make those of that injunction on the record they can't just say we think we need an injunction e bay to specifically goes to that fact that injunctions are a matter of course and i think maybe i'd watch the second quote part of your question in my mind oh what's the basis for saying they were trying to do a pretty preview trial i hesitate i almost made misspoke when i said that there there is e mails in the record now at the district court level we that those are available for all certainly there might be issues about authentic ation that kind of thing but they came from the from the i was struck by the what i did not hear in mr oakley's argument and what i did not read in his brief his two briefs on this issue and that has not been adequately addressed in the district court which is the fact that his motion for attorney fees was not timely as a matter of law he filed a motion for an extension of time after the time for filing motion for tourney fees had expired that motion did not identify any cause much less a good cause and certainly not excusable neglect as would be required under six would it be timely if we ruled in the prior case the way you wanted us to rule which is to say that the district judge failed to rule on the i mean your timely motion and therefore there is not a final judgment in the case i think that there is a final judgment in the case but there are post judgment motions that are still pending that told the appeal i think that's an important this thing was judgment motions though not to hold the time for filing this motion that there i don't believe that's what the rule says i think that motion has to be filed within fourteen days of the entry of judgment and judgment has been entered in this case and they did not meet that standard that it was not timely and they have yet to offer an excuse as to why it was timely so there's no it's no extension there but i think even more importantly leaving aside for the moment that even this issue based on the first case is not ripe for this court's review standard articulated by the supreme court in octane fick fitness which is essentially a totality of the circumstances standard and i realize that phrase covers all manner of sins but the reality is this motion has no merit we produced regardless of the issues with the evidence that we were not able to come up with we produced a very substantial and into my mind conclusive evidence that this defendant had done precisely what we were saying he had done he we produce a dr and the purchaser of that drive and we showed that dr during the trial the tracks from that dr showed up at the sun trust trademarks on that evidence and i think if you look back at this court's ruling in the original appeal in this case reversing the summary judgment i think that that very clearly meets the standard of what constitutes trademark infringement the fact of the judgment went for the defendant does not mean that they are automatically entitled to feeds we produced a substantial case with real evidence and witnesses that was largely uncontrover and i've never i've never i'm sorry evidence can of actual confusion i've yes i believe so because just briefly one or two sentences what was the evidence of the actual confusion  martell testified that when he received the product and saw that it had sound choice he was positively surprised that he believed what he was getting it was legitimate sound choice material and he evidence of actual confusion however evidence of actual confusion is not required for a finding of trademark infringement there are eight factors on her frisch that are  that are possible and while evidence of actual confusion is strong evidence of the likelihood of confusion it's simply not required and some of the more there are some of the other factors are indeed much more important in most cases now as to whether we we presented enough evidence on the e bay factors i'll note that generally speaking at a trial there are many things are going on and in this case there were there were a lot of evidence being put on regarding the actual factors now i don't think that it is inappropriate to say that we we didn't we  didn't get to injunctive relief because the judge entered a judgment for the defendant that means that cuts off the inquiries there's no issue on injunctive relief that's not an issue that has to be presented at trial that can be presented after the trial after the judge has indicated a ruling because that's in the nature of what is the remedy not whether the what which party is entitle to believe which is the main function of the trial so i think that's not a  important issue as to whether a ruling on attorney fees is appropriate or not in this case i think the judge very adequately dealt with these issues on the merits even though he didn't have thank you very much thank you august twenty third judgment was issued we requested relief from the court we filed a motion separately from the motion for an extension of time the court considered that motion the court exercise discretion in considering that motion and didn't deny the motion on that basis so i don't believe that that's an issue that i don't think mr harrington is arguing that the court could consider that motion on that basis in addition to that i think more importantly for us we thought it was unlikely that we were going to get attorney's fees for the entire case but certainly because there was a trial that was basically held on shaky ground shaky basis to have a trial at all that we thought  appropriate that the court issue ruhleben same sick since sanctions against the plaintiff for taking care of those activities i thought in looking at the district court's order that if it were timely filed it doesn't meet the criteria so why isn't that a finding that it was untimely the end but even if it were time i'm going to reject well if it was if he was rejecting him for being an untimely he i would think that he would say that he's rejected for being on time only but he said that we didn't offer an excuse there he said defendants effectively conceded that their motion was untimely and should be procedurally b don't think we conceded that it should be procedurally barred we asked for the court's discretion and given us an extension of time in which under rule fifty four they certainly are allowed to do that and we looked at the advisory committee notes on the rule fifty four and one of the reasons why there's a fourteen day limit on that is to give the plaintiff the ability to know whether they want to appeal the case because if there's going to be attorneys fees claim they don't want to turn these claims months after the trial the pla that hasn't demonstrated any prejudice in the judge didn't indicate there is any prejudice to the plaintiff by this being a few days after fourteen days i come back again to the point which i think you're you're accurately reading what that what the ruling says we didn't offer an excuse because we filed a motion for an extension of time the plaintiffs in essence didn't directly respond to the motion for attorney's fees under rule fifty four eleven thirty seven they just simply said it's out of time we didn't for the respond to that motion because we expected to respond in the reply to the motion in chief so the briefing on that particular motion was a little bit unwieldy if you want but i do want to make a point with regards to a couple things that mister harrington said i think is simply misinterpreted might be the kindest way to say  testimony of mr martell mr martell didn't ever indicate any confusion on his part if you read the record i think that's a stretch of an inference more importantly though is that mr martello was at the trial at all the plaintiff didn't disclose him as a witness until june seventeenth of two thousand and eleven discovery closed on july one therefore we are barred from having the opportunity to depose mr martello or any of the other witnesses including mr shoe the who identified on that same pleading then when we contacted them based on the contact information they gave us the telephone number was incorrect so we never were able to contact mr martello until the day he appeared at the last day of the trial if you read the record the judge gave the plaintiff the opportunity to fly mr martell in from new hampshire delayed the end of the trial by a day so he could arrive to be a witness we had less than an hour to interview the witness that was the only opportunity we ever had to speak with that witness we had no opportunity whatsoever to look at the at the evidence they offered at the trial for him to say they offered hard drives at the trial we believe it would have been reversible error if the jury would have found on the behalf of the plaintiffs just on that fact alone that that evidence should should have come in but you're right thank you thank you both for your argument this case will be submitted