speaks with the conscience of the court and the doing of justice is up to operate most in its mind when a district judge craps rules that directs mandatory conduct those rules must be clear and unambiguous and such were the words of the injunction the judge sharp initially imposed on mr swain when he directed mr swayed to redesign his good targets so they would no longer be identical or confusing what we are saying here saying is that those swayed redesigned had stuff should have been and should in the future be judged in the standard the judge sharp you knew surely imposed in mandatory language that has never been done because in the enforcement proceeding of march twenty seventh judge sharp believed this language from the consent decree at the urging of offenders counsel thus le judge into reversible error judge shop sharp committed yes  from the consent decree as some sort of this is judge rogers counsel yes i thought that in your reply brief you agreed that we had no jurisdiction over an appeal from the april seventh two thousand reach the merits or go to the motions for a time it did both your honor is my understanding that he did both and if both found that there  say this is entirely a problem of suade own making because he agreed to this language so you have to win on both of those issues in order to make the argument that you're making today  and educated is sixty the motion in which i personally admitting error and not calling swayed to this dance testifies to the true meaning of the consent decree  discretion to be exercised which would be to consider the questions that were raised in the motion to it was the proper standard applied was it fair to construe the agreement this way is it consistent with the intention to the parties or was is on are correct i don't think the judge frank just dealt with those issues i think there is a billiard exercise discretion there  and for that reason it should be reversed because if discretion has been properly exercised the court would have seen through to the essentially aquittal result that was reached here by the lighting or frankly the leading  language of section two and substituting for it the language that for it to be it was actually a political only to a narrow range of marks and clearly by its own terms was not a political so the guitar had stocks that  i mean this your honour's it could have been raised on appeal if you wait until the appeal time expires and then you bring a rule sixty b motion not on the basis of anything that's happened in between but purely on the fact that the court was erroneous the first time sentenced to a lifetime of not being able to to practice his guitar i i couldn't face the man knowing that i was going into that into that mistaken position if that was the case and  that was an error which completely takes it outside the scope of the people and places it squarely into six b and i also think that might be standing there in the courtroom and not turning around to see my client wanted to take the stand to rebut the judge's assertion that he had to read to the section to eat language i don't think that that's a matter that could be raised on appeal either is that i have not been able to practice quite binding myself there yes you're on you know my question gives me booming all of that is a lot to assume that assuming all of that the decision was either reversible on appeal or not based on all of that at the time it was a matter right and my question is why why isn't the reasonable time less than the appeal time because if you allow a reasonable time to challenge what you can challenge on appeal equity has a duty not only to the parties but also the institution and to the court to make sure that when this decision goes back to the district judge that what can be that district judge can do justice prospected because this is an extremely weighty matter and this is not to say that procedural matters such as the court dresses can be indeed by and wait because of the gravity of the nature of the rights that are infringed here that the court can find a way to remedy it to send this back so that mr wade can get his first bite at the apple and so that the district court in the future and can implement a reasonable order that can be implemented because otherwise there are tremendous prospected issues in terms and forcing and mr davis when you're ready may it please the court my name is theodore davis and i represent they absolutely in this matter fender musical instruments corp mr swades appeal amounts three challenges to three actions taken by the district court in each of those challenges is without merit the first challenge is to the district court finding that mr sawyer was in contempt of its final injunction and in breach of the party settlement agreement on both of which the signatures of mr s injunction the second challenge is to the district court's denial of mr swades motions for reconsideration and for a new trial which were filed five months and seven months after the contempt order respectively and finally the third challenge is to the district courts and forstmann of the mandatory fee shifting provisions contained in the final injunction on the settlement agreement but that challenge depends in its entirety on this or soit challenge to the contempt finding with respect to the first of these the contempt order in light of that the session founder doesn't want to belabor the point but it's worth noting the breadth of the arguments covered by the absence of appellate jurisdiction this means that the arguments and roman numeral sections three four five six seven and eight mr swayze opening brief in roman numeral sections two three four five six and seven of his reply brief are not properly before this court but equally to the point mr suade has waived a number of those same arguments by failing to raise them before the district court these include the arguments in rome or new roman numeral sections three four five and ten a dot c of his opening brief they also include the arguments in roman numeral sections two three four five six and eight of his reply brief junction constitutes a mistake within the meaning of rule sixty b one which he briefed for the first time on pages fifty and fifty one of his opening brief before this court his argument before the district court was that the district court had made a mistake within the meaning of that rule and the way the arguments also include the claim you've just heard which is that the allegedly new excusable neglect of mr swades counsel is a basis rule sixty because the first time he actually briefs that issue was on page six of his opening brief before this court although mr swayze motion for a new trial before the district court was accompanied by a declaration by his lead counsel raising the possibility of excusable neglect on his part in the significance of that possibility went completely unaddressed by the motion supporting brief in its reply brief but to respond to a point mr swades counsel attempted to make a few minutes ago both the settlement agreement and the consent injunction in this case containing several prohibitions on th among them is a two tiered mechanism for addressing mr swades chronic copying of the headstocks incorporated into fenders guitars some of which are registered trademarks of fenders and others of which are not with respect to fender headstocks that do not qualify as protectable trademarks paragraph two each of the injunction requires mistress wade to redesign his own headstocks so they are not likely to be confused with fender's head stocks but with respect to the fender headstocks that do qualify as protectable trademarks paragraph to see of the injunction prohibits mr suede from using headstocks in any way similar to those marks neither of these provisions prevents mr suede from hauling his trade as aloof here so the contrary of the record reflects he has myriad alternative headstocks available to them but he has simply chosen not to avail him tars a little bit it is saying not only does that heap him from making designing guitars that are in some way and miller to the guitars but also restrain him from working for any company that manufactures guitars within that broader you'd concede at the broader definition i gather that your whole point really is that it's a broader definition than confusingly similar if they had  restrained him or not your honor that said it is a broader standard and this is one of the arguments over which this court does not have jurisdiction this constitutional right to work theory is also one that ask you about that i'm sorry your honor i'm trying to respond now i'm trying to respond to your honor's question but with your argument where you were taking his viewers sort of assuming that we have jurisdiction and going through and saying why the broader interpretation applied and i'm just wondering how does apply does that apply to wait from seeking employment from any company that manufactures guitars  that in bold in his brief is that accurate or not he does state that it does not track the language of paragraph to see of the injunction which requires him to him personally and his company which also is a party to this case  injunction so completely cease using directly or indirectly and it goes on from there so you would not create it under your interpretation you would say that the order does not restrain him from seeking employment for a different company courts injunction suggesting that interpretation thank you that's my question thank you  continuing to address the two tiered structure of the injunction in the settlement agreement this is not a an unintentional or and it's an either intent unintentional or an accident of drafting it also is incorporated in the party settlement agreement and because there's no dispute that fender's contempt motion sought to enforce fender's rights to the registered marks reproduced on pages four and five of its brief the district court did not air and holding mr swain to the language of paragraph to see of the injunction which prohibits him and patients of registered headstocks and to reiterate that prohibition reaches headstocks that or any way similar it also is undisputed that both well before and during the contempt proceedings fender repeatedly notified mr slade that it intended to relieve seek relief under the in any way similar to standard in those notifications took the form of an e mail communications statements and opening brief before the district court which even italic size those words offenders reply brief before the district court which characterized mr swades compliance with this standard as the sole question raised by founders of motion offenders expert witness report which of hind and mr suede had violated the in any way similar to standard and referred to that standard and additional twenty nine times senator supplemental brief between the two hearings which argued italics sized language that quote the in any way similar to standard as a standalone basis for liability unquote in fender's arguments that both hearings which repeatedly reference that standard in these repeated references fenner's reliance on that standard preclude any determination the chief judge crenshaw abused his discretion by holding that mr suede had not suffered a deprivation deprivation of those but then went right to due process to the contrary as chief judge crenshaw and properly concluded mr suade had the opportunity to file a brief and a sworn declaration in opposition to that motion he presented expert witness testimony over offenders objections the district court held two separate hearings and in each hearing m chief judge crenshaw abused his discretion by rejecting mr swades claim of surprise under rule sixty b one had fender placed its references to that standard before the district court in this tree swayed in an overly subtle or disingenuous fashion constituting surprise within the meaning of the rule those references would have been lost on the district court which received far less notice than did mr swain and his counsel for the record shows the chief judge sharp not only arrived at both hearings on fenner's motion well aware what senators argument was he warned mr suede and his two lawyers representing five separate occasions in open court that they were arguing the wrong point of equal importance both mr swain and his lead counsel submitted declarations to the district court confirming their awareness no later than the first hearing of fender's reliance on that standard and even if the claim by mr whately counsel given surprised at the first hearing is credible and center says that claim is open to question there is nothing excusable or nothing surprising nothing he should have been surprised about at the second hearing and specifically despite his admitted knowledge of federal standard theory of contempt mr swades castle failed in connection with the second hearing to address that area in a pretrial submission in his oral argument and preparing his expert witness and his direct examination of that expert witness in his cross examination offender's expert witness or in testimony from his client and vive the district court had to warn him again of the second hearing he was arguing the wrong point but equally to the point mayor attorney error is not a basis for relief under rule six state and mr swain's briefs cite three cases for this proposition and each one of them either isn't apathetic or reaches the contrary holding willesee alexandrovna pending from this court reporter the nine eighty seven s second three ninety two the underlying error was actually by the district courts clerk's office which failed to docket a timely notice of appeal and the only error by the attorney that issue was counsel's failure to seventy six f thirty four thirty four and it has nothing at all to do with attorney error a mistake or surprise it arose instead from a rule sixty b six motion based on prison guards preventing the appellant from noticing a timely appeal and finally there is the case as h c equities reported one eighty eight f third six seventy eight in all the court in the know about that opinion of the statement and i'll quote here plaintiff does not point us to a single case however which hold an attorney misinterpretation of the law can constitute a mistake under rule sixty b one in the same is true of the parties pleadings in this case and finally chief judge crenshaw did not abuse his discretion counsel are equally basis to prevail on a rule sixty b three motion on the theory that the opposing party has perpetuated a fraud on the court the movement must demonstrate by clear and convincing evidence a deliberate act aboriginal effecting the fairness of the relevant legal proceeding here fender did nothing more than invoke a standard expressly memorialized in two separate documents executed by mr swayed and his counsel before formally filing and serving them this therefore is not a case of fender hiding the ball from mr slade it's instead a case of a deliberate decision by mr swades to lawyers not to respond to the arguments repeatedly and which as mr davis knows repeatedly recited the confusingly similar standard at the conclusion of that hearing and this was stated in my declaration in support of the sixty b motion likelihood of confusion and at that point helpful for mistress wade said to the court so then are we in the clear on the strata cast and in fact and the judge said no i'm not ready to say that however the court did convene the next hearing for the contempt and said that in that time the court wished to hear expert testimony on the issue the court did not request in the mind of suede and is counsel the court was not requesting expert testimony because it wanted to find a standard that would be so broad as to make expert testimony useless which is what the in any way similar standard does if the court had intended to apply the any in any way similar standard it could have done so immediately because as the record will show one judge pressed mr larson during is examination on the stand in the march twenty seven team contempt hearing when he pressed him on whether there was any similarity between two aides had stopped and those f in my seat at that point he virtually because i knew he could be virtually had no opinion to offer and simply concede that well everything is similar in some way so there was substantial reason for swayed in his counsel to go forward thinking that their prior briefing and the wire understanding of the issues presented by the court were very simple the simple rule was are we going to show substantial similarity with respect to one had stop both had stopped are we going to show a lack of confusing similarity and be in the clear on one or both and the no further issues were in fact contemplated and i'd like to address the next issue which is the statement that the best chunks in the brief are irrelevant i would note that the fourteenth amendment portion of the brief is perhaps the most important and that claim was certainly reserved at the rule sixty b stage and that remains extremely important the constitutional claim that this court may not b quote or different places at the end of the previous hearing where judge sharp said we're going to use the in any way similar standard  contents because as we were almost walking out of the courtroom i literally said to judge sharp are we in the clear on the strata caster because you have expressed an opinion that there does not appear to be any confusing similarit maybe i was irrationally pinning hopes on it in which case your honor i think that's excusable neglect but in no way do we prepare to adjust our argument to deal with the possibility because if we had your honor i wouldn't with mr davis netting that you tend to cast aspersions in his direction however it was an entire shock to me when these contentions were made and followed up on and off with them if i was not astute in picking up on where we and there is no way yes down so if you're headed down the road here that is probably not appropriate and then the event your time has expired thank you very much  thank you the case will be submitted thank you that concludes today's telephone argument for case seventeen dash six three nine four we ask at this time for the council to please disconnect from the account conference call i'll just remind your honour's that if you need to contact the operator please press stars zero if you can hear one of your colleagues they can verify that they are still on the line or have been  disconnected your honour's do you require anything further know at this point if you will make sure that the only ones on the line are the three of us and we will appreciate it i absolutely will samantha can you please assure the judges that once i hang up no one else will be on the line yes ma'am i sure can thank you very much and all of you please have a good good afternoon thank you jenny thank you for your help thank you you're welcome