the morning your honour's may please the court my name is charles reuben i represent beatrix motors corporation which is the appellant appealing the summary judgment granted against it on a trademark dispute regarding the trademark name matrix know i believe one that went to europe did have an outside the body but the one sold in the united states had it either on the engine on the body on the frame on the chassis but not on the outside of the  hundred ninety five to the present the name being is matrix yes in a matrix why would it be relevant for every do you think it's relevant or irrelevant if the mark is on the outside of the car as the park is going to be the subsequent seventy five thousand or goats or in the other passenger cars that are being developed those are the products it makes parts for these cars without help but i mean in in where you used the term mark previously ten but two or three were outside the united states and so that's where there was detail and there's been no evidence ever submitted to contradict it that's why i'm not sure it really is an issue of fact because even if we accept all of that aimed more at me from a consumer protection stand on the consumers not confused by the trademark that's attached and leaving aside the issue of what market it goes for is  constitute use for a market in a way that is impossible to do any kind of consumer confusion this is a den of five matrix as a flag that owned is owned by your client as opposed to a name that's put on some parts inside of a car sold that you do have a right to the mark by first use of commerce but still would you have to show a likelihood of confusion yes or under the multi factor or the summ judgment would be proper even if the judge was wrong on the news so how do you address ok fact issues on the confusion issue first of all the law as you do not market for a version or period of time in which it was february of two thousand and two the lawsuit filed here for all of two thousand and two that you don't have to show after actual at this confusion doesn't help or hurt because it's too any cars that said matrix how could they be confused with the car because we sold cars on the open market with the name matrix but it was on the outside of the car but they were the race cars the passenger cars that are coming along for which of expansion expansions a critical issue you know the tricks motor skills are like if you have a mark for racing products and that  going to produce their cars are in development companies product or similar in use and function they're both companies of products are closely related not more than in which i want to be the court's attention and sleek wrath they compared the high speed the credibility of the company it hurts the product identity it hurts the ability to continue to stand your product not use so do i take it that it isn't i want to see this properly the law does not require that you can't use a name that you use first to create a trademark in a product because you want to use it  that was submitted to the district court on the issue of travel in the section actually in s c you are fourteen zero eight there is a figure of one hundred four thousand dollars for travel if you add up the figures that are actually in the column actually incurred to begin with the total amount of fees that were awarded by the district was one point one two three million dollars and the amount the actual amount that we requested was somewhat about two hundred thousand dollars higher than that i believe we had also cut some money from the bill before we smoothed the bill costs for a lot of well your are short of this case although it's frivolous from a substantive standpoint from now of work mr friedman was not necessarily incompetent and guilty of all the things that he's been charged of in this case it's entirely possible when you look at the facts that he was doing his best to hide the fact that mc didn't have any evidence to support its case  and you know if if matrix made pan's let's say and they put in commerce and they matrix with their hands and they had plans to extend that to pencils and toyota was a big pencil manufacturer and it came in and started calling its pencils matrix pencils or had a line of them i thought a lot of manufacturers who put a mark in commerce to extend it to other lines with some protection if they were similar or within a certain degree of similarity so someone who made pancakes let's  but if i'm right in that i don't see why it's so frivolous that matrix would use the name of the racing car and say we plan to use it for cars for street driving and toyota is screwing up our plants so it's not like bad faith on toyota's part it's not listen on the plane this part you know it's just an issue of what the trademark protects was judged well you're correct must be some concrete plans that can't be pure speculation there must be some concrete plans at the time that the junior user in this case twitter and use the market there is no evidence whatsoever in this case of any concrete plans there are no photographs of this roller in a photograph of the chassis no photographs of the body there are no there are no evidence of plans drawings blueprints there's nothing whatsoever in the record to show that this car is in production excuse me the official airline guy's case from the ninth circuit says that there must be a strong likelihood of expansion and we would we would submit that there is no evidence of a strong likelihood of expansion in fact this car doesn't even exist the tail drawings then they'd bought a contract to buy machinery to have a line to sell street cars then would you agree that they could protect the name matrix of the street cars know what i have to say is that if one fact if there were concrete plans in fact if if there had been any evidence of real efforts to bring this cars market then that would be a factor that would favor and said exist please exists they said it was going to be shown at the january two thousand and four order so they said that it was substantially complete by the end of two thousand and three but in a later brief in the same appeal they said that that wasn't true and in fact that brief was filed while the los angeles i was sure was going on in a later brief they recant the deposition so in other words one of six when the january fifth brief was filed stating that the car would be finished by the end of two thousand and three and would be shown client allowed the false facts to be used in the brief in addition to that even if this car ever comes out onto the market m m c admitted that it does not plan to sell council admitted and nancy has admitted that they don't use the market matrix on the cars themselves they use it they say on hearts but they've also argued that only cars are relevant they are good for dismissing all of our evidence of third party uses in the automotive slash racing field they said all that's relevant is the use on cars so if there excluding the use on cars for their purposes they must also exclude it for all other purposes and therefore the issue of whether the use the mark on parts or not is immaterial to this whole motion of record value it's its strength the strength of that registration the strength of the market which is matrix and design must be judged in light of those other uses throughout their five six of which are in california now on the subject of the likely of confusion factors m m c makes the argument that the u s patent and trademark office rejected the trademark application it was filed by our client for the words where to because of an application for t office rejected the application for the car as car in view of tires but at the same time they want to reject all of our third party uses of anything except cars so you seem to be inconsistent in the argument that they're making on the other likely to confusion factor strength is one of the most important factors and the issue is not as it's been put in brief between whether the market matrix is arbitrary or whether it is descriptive but it's whether it is a strong trademark and as i just described to the court it's this market is weakening of a lot of fields being used by at least twenty other companies in connection with the automotive deal with racing three something actors and they are evidence that the cars were sold or promoted together well here i'm season emitted that they don't advertise their product that's a year or two ninety five also their cars are made by special order whereas for those car just sold through dealers so the they are not sold or promoted together and that's all of this evidence is undisputed the second some factor is of proximity is the different classes of purchasers and here and then season it there are different classes of purchasers for this passenger car on the one hand and metrics race car on the other hand that's your three so and you've already heard that there is at least some evidence that suggests that there's a reluctance to use the word mate for it's as the source of engine transmission whatever it was on the race car because people are go first to address the third party that was mr scott's letter first of all he's a potential british customer so we're not talking about potential confusion that he saw in the united states and that's all that's relevant here secondly with respect to camry cortex traditional most of  i would submit that although the court may be familiar with the camera name i would submit that matrix is not nearly as popular and in and in this record there is no evidence that twitter has taken over the name matrix there is no record that they've taken over the field of automotive products with the name makes in fact the evidence in this record is exactly the opposite that there are twenty other users out there the third s factor that was made by the sleep rough place for proximity is that there's no evidence of similarity in use or function well on the one hand here we have a passenger car that costs roughly twenty thousand dollars on the other hand we have a racing car know all of these factors were addressed by the district court yes that's right on the issue of actual confusion just to touch on that briefly and then see admitted that no one has believed that m m c racecars  actual confusion is not required if there is evidence of actual confusion and inference can be drawn that there's a likelihood confusion well it's been one of a half years from the time for started using the mark to the time the judge carney made his decision and no evidence of actual confusion in that time period and then see present some hearsay evidence but it's not evidence of their customers in a reverse confusion analysis which this is we must look at their customers the last factor that i'd like to address is the type of goods and degree of care and here this may be the most important factor and then c doesn't allege that there are any disputes as to the degree of care that would be exercised by the customers or customers of our professional racers buying a three hundred fifty to four hundred fifty thousand dollar race car they're not going to buy it thinking that it came from toyota and that is the test and reverse confusion analysis did and then sees customers believe they were dealing stance i believe it was in may of two thousand and they have been april of two thousand and three and we were in the midst of preparing for trial at that time and preparing some redress motion after the case was transferred to judge carney we simply file and he continued the trial date and then we simply father summary judgment motion with expensive for us to obtain basic discovery that project discovery was closed yes discovery was closed before judge moore transfer the case that's right so judge harding was actually rely