new network yet after eight years of litigation ten years of use of that mark no jury has ever been given the opportunity to make that determination indeed after this court remember the case for trial in two thousand and two on the issue of like confusion were here again in response to the lower court's granting of summary judgments in favor of vioxx depriving and two software from presenting its case for damages and infringement  three c dilution but they did not add that wolf in this requirement for section thirty two or section forty three day vanja varies and the third circuit has dealt with the issue and said that it's not a prerequisite for mon recovery but there even if there is an issue of willfulness there's a plethora of evidence in the record from which a trial or a fact could've found willfulness or bad faith intent on the part of that would have led to a finding of attorneys these actions before the p t o where the viacom sought to register and then design not disclosing that the use of the word of the letter to the number two in the word mark where as they had filed registrations for and three through and ten seeking to disclose the actually use of the number there was an omission of interact the interactive portion of the use even though in the united kingdom the registration did disclose the interactive portion of the use of the mark there was a license of him three but no attempt whatsoever to indicating that there weren't using this interactively despite the fact that it was it was all set up as a technology edge interface to the music industry where enter chast teamed up with intel and was that one of the first networks in which in fact i believe it was the first network in which people could interact with the private if we draw a comparison to the totality of circumstances factors that are required in the patent alina will find that there was evidence in the record of every single factor look to whether the the defendant deliberately copied the mark vi kanu of us back on knew of them to software in one thousand nine hundred two despite the fact that they claim they don't remember they knew about splashed nation life all over the place when they say the mark wasn't that successful yet eleven million people subscribed to the station so the network eleven million people is a lot of people in my  mtu software was infringing on a viacom work i would have it's in the actual briefing i would have to look for it if you want i can look for it during the break addition to that the size and condition of the defendant we look to the behavior of litigation this was a strategy of over aggressive attrition there were thirty depositions taken within a seven month period of time before a summary judgment motion was filed this case is then to the ninth circuit twice it's been in litigation actively for eight years and we still have not had a trial yes it's time for this case and it's time for this case to the empty registration forward marking the technology edge of the music industry so for the jury to determine that the duration of the defendant's conduct it's now been going on for ten years we are in the decade of conduct i don't believe we have your honor there's nothing even in the clarification order from the panel that the sight of the two thousand and two order indicates what trademarks to the defendant's motivation our expert has come up with an analysis that determines that there was a billion dollars attributed to the m t v network from the and to network that was adopted that's a that's a heck of a motivation and billion dollars over a nine year period of time a remedial action was taken i would think there was no remedial action taken medicine and you look to whether the defendant attempted to conceal the misconduct and then we go back to to the testimony of so verman for viacom where she said that there was no there was no interactive component to use of the mark that was deliberate concealment you look back to the p these are factors the record was written was it was full of evidence like this that was discounted deliberately by the judge below or ignored and more important if the judge did do away he's not entitled to weigh the evidence presented false advertising which requires actual confusion to identify which competitors actually harmed look at the reply we thought page seventeen and no twenty one and we've addressed that issue specifically again the issue in the in the in the teles brief where they talk about the record the actual damages that goes to the weight of the evidence presented on actual damages the judge doesn't get to resolve this at the trial court level o summary judgment there has to be a trial to determine whether that weight how to weigh that evidence whether there's enough for actual damages whether there isn't we know that there was this there were actual damages suffered by mt software that's no there's no question about the evidence is clear on that the question is how much the judge said none he rejected all of that it's the evidence that b m g refused to extend the international contract just that it cut half of his national work because it's national work in half but there was a damage to the reputation of good well i've answered software throughout the industry because of the fact that this litigation existed and there was a belief that m two software had a docket in appropriately adopted a viacom trademark that is throughout the evidence the record as well as the briefs refer to the various places in the record where the actual the typical place that would happen is an account of the case where a product is being sold with a registered trademark that's not the client's product not the plane strike every product results in the plans actual damage so you just course the defendant's pr was a sign of the mark not to look at us and we said no we're not going to do that their overall commercial impression of the end to mark's is that of them too and if you look at them throughout the record you can see that there are cameras life that i think brand positioning is the crux of this case in fact khan has valuable assets in the way of trademarks if viacom name and its m t v names are incredibly valuable in the marketplace and it's thought to find one that was brand positioned where it needed to be on the technology edge of the music industry and it found it within two already in the interactive music environment already doing record label management systems and a computer arena that was far incessant anything anybody else had been doing and but rather was meant to correct a drafting error regarding remedies in dilution case so within the law is absolutely clear and it would be a reversal at this point of longstanding ninth circuit precedent to say that wil right and and let me just explain to the court what happened it's all in the record but what happened is is the earlier appeal to the ninth circuit we go up to the ninth circuit in the only claim specifically ra clarification and it's crystal clear in the papers to the night that our position is only one claim one and then the night circuit issues its order in which it serves as we were verse to grant of summary judgment only thing left is federal trademark infringement under eleven seventeen and that is a critical issue because of the wolf on this issue and it's also a critical issue because of the damaged reputation  where's the me where's the link to the contract that you lost and how much did it how much did you lose how much were you ganesh mr ross i asked him the question is that what you know was there not enough evidence your statement he said he owned the trademark into question other than that with any discussions regarding your question in credibility and then to software after you apply the of the trademark no did you know that mt music television was not related to mistrust to me at the time where  other point and that is the only relevance to this twenty halves would be to allege of lost profits is not relevant to correct about causing or could be relevant if you if you think there's a damaged reputation and we're not hijacking that's right they think your product emanates from you by the brand which is in their mind which is already in their embedded in the consciousness they think i establish damages i think the helpful thank you go through what's required since we've now gone through actual damages and we go through the evidence that's required or not required and what's in the record that shows that there's no other type of damage cla the undisputed evidence in the record and the the lindy pen case i think your honor is quite important here because in lindy hand the ninth circuit the they rejected the plaintiff's claims they could not segregate revenues from infringing uses since defendant never separated its products according to such markets instead the court how the planet had access through discovery to defend its records from what your reasonable estimate could have been there weren't any right in the undisputed evidence in the record shows we gave it away for free during this time to get us also shows that wasn't nothing unusual about nothing permissions about as a footnote in one of the memos it talks about during the time that off so those layers of arguments as to any of the two that's the first one is you can't come back when you knew about something you never meant in your complaint you never saw anything about it and you didn't raise it the ninth circuit you can come back later and claim that you know the registration that's the federal trade mark registration claim under section eleven seventeen i mean section eleven fourteen section thirty two of the act and then it refers moreover to mtu having senior years and  user of the mark and that language in that in that section of the opinion that's where the forty three acclaimed dealt with now if it discusses non registration rights in the context of the  the rights of the you know chains from the registration and it discusses tradename usage under forty three and when it discusses when it starts off talking about senior versus juniors and seniors writes the damage to the credibility case and it's referred to at page seventeen of the reply brief actual damages have never been waived it's dealt with extensive with the opening group of page fourteen the nature of those actual damages may not be a billion dollars in profit but they were actual damages nonetheless  waiver of the logo it challenges to the over there was never any such waiver and i turned the court referred the court first to the complaint where it cited page fifty six of the opening brief and it's also the r site is is one through seventeen and i would refer the court to the language of the actual complaint where it says using in any manner the trademark mtume informative there out alone or in combination with any other word or words or design or designs which so resemble plaintiffs mtu trademark as to likely be likely to cause confusion we couldn't imagine the complaint what would we have sad we had covered it off i refer the court to the july status report which is found in the actual docket you'll see a reference to the july status report in a minute order where we disputed this issue where the logos were plays that issue and also that's july two thousand and two and also in october two thousand and two the status report marks these logos were in front of the ninth circuit on the first round when i showed the court fees marks the first as it were and marked the second at the initial reverse evidence of the mtu mark that was used with in order to be a waiver there has to be a clear decisive and unequivocal statement of a purpose to waive legal rights that never existed in this case in fact the let me have references that are raised by mr farland and his statement were