case number one seven dash for one three two sterling jewelers incorporated we artistry limited or arguments not to exceed fifteen minutes precise mr bruce baber for the p judgment by sterling jewelers the largest retail jeweler states that's the deputy coroner to reserve three minutes of my time for both as your honors know we're here on our histories appeal of the district courts grant of summary judgment to the accused infringer a nd we're here for this court to review that decision day novo as you said recently several times with fresh eyes on summary judgment a district court must view all the evidence in the light most favorable to the nonmoving it must draw all reasonable inferences in favor of the nonmoving it cannot weigh the evidence and i cannot make credibility determinations if the district court finds there are genuine issues of material fact when it looks at the evidence in the record through those prisoners that's the end of it s that that's different from most circuits the court has said so i am aware of that just tell me how you think it works in our circuit i mean where i've got this panel i think it works here is that the the court has said the question is a mix question of law in fact but that once you have the foundational facts established this court can look as a question of law whether or not they could result in likelihood of confusion i think that's how this court does it but there are some developments in the past few years that i don't think the court has looked at in terms of how it has has expressed that sort of review standard in the bank case and twenty fifteen the supreme court made it very clear that mixed questions of law in fact are questions for juries and that the way it works with the next question is district court gives the jury correct instructions of law and it is up to the jury not only to find subsidiary facts or underlying facts but also it's the jury's constitutional responsibility to decide the ultimate mixed question issue so i think the court can always in sort of cases at the extreme you can always say well as a matter of law this can't be such and such whether it's a mixed question whether there is some question of law aspect to it but i think the court's cases are pretty clear that likelihood of confusion in this circuit unlike some other circuits is viewed as a mixed question of law in fact so i think that then triggered oh this is your client ever sold to case we've never sold the case your honor now but we have sold to many many many of cain's competitors and that's where the rub comes in ok we have the evidence in the record that the district court simply ignored which is you say a case competitors to would you also include jewelers that have retail stores and malls absolutely your honor and that's what i want to start a high level ok what the evidence in this record shows is that viewed in the light most favorable to artistry if i'm a consumer and i'm interested in jewelry both in the online world and in the bricks and mortar world i client you know buying from some company the minds it or are you adding and you're adding value i don't want to get into that but i mean you redesigning it or you buying in bulk and then selling to different retailers artist resources its products from designers in various places some in the form that he doesn't add design it no it does in some cases design it's own in other cases it buys designs that others create for them what's the percentage like how's it break down that i don't know you're on and i believe it's i don't know that we have any evidence on the record on that but what artistry does is it sources its products and then it sells them to the wholesale jewelers who in turn offer them to consumers so if i'm looking for jewelry products online and i go to one of our histories clients websites and we attach an example to our brief in the district court there is no dispute about this our customers use our mark on their websites to identify our products just like sterling does it at their b stores at their goodman stores and at their case stores so a consumer can see both in the real world a consumer can be in a mall they can go to was ailes or it's a case jewelry store they can see it displaces artistry diamonds they could go across the mall to an independent jeweler who buys from us and they will see our products the testimony of our witnesses they may very well see our catalog with our name on it and they could be directly across the mall from each other but it could be across the street or something so in both the real world environment of bricks and mortars or here i want to make sure i got your theory of confusion down i thought it was a little more of the risk that the retailer your retailer should be anxious about buying from artistry because mall stores are using it they wouldn't think it's the same quality it's what i hear you saying today maybe i just did none of appreciated is there are two distinct theories of confusion one is the problem that the retailer won't buy from you anymore but the second is you actually think there's a problem of consumer confusion with the consumers being the same people the end buyers the two are not yet sure yes you think you think both  you have any evidence of both in this case here that's what i didn't think you had so i'm just just to be clear worked i see it happens all the time that you think i'm saying one thing and i'm saying something else so when you answer the wrong question i find myself discouraged mike the question is all to make consumers so the people buy the diamond engagement ring you do have evidence in the record that says those people were confused and they thought they were buying one and they were actually buying the other we have one very clear instance your honor of a customer go ahead where is it it is in the testimony of susan clamped i believe it is and they asked her about one of her instances of confusion that she was testifying about the owner of  daughter so she's laura is the owner susan is the daughter who's in charge of marketing and another activity and there's an e mail exchange between a customer who was looking for a sterling piece of jewelry an artist a piece of jewelry and i contacted my wasn't an instance of losing the sale it was an instance of not getting a sale from somebody who wanted some of the other people it wasn't that they wanted you and were confused director r and the issue judge sutton on what happens in the consumer level is an issue that this court has said you have to look at in terms of the relatedness of the goods factor that's why i was emphasizing that but the big picture issue that the court needs to focus on is there's multiple kinds of confusion and the court has said they're all ac yeah but it doesn't it doesn't work that you get to take types of confusion at different channels of commerce and i am not accusing you of this but in the abstract you wouldn't be able to add up three week cases of confusion and call it one when they're each distinct agreed to look at them separately and that's there is not a lot of confusion evidence when it comes to the ultimate consumer that's what i thought was true in this case so that seems to me that it's more a case about a problem of confusion of the retail entity buying from wholesalers it is your honor with this caviar if you will the issues that the consumer level are an important part of that because if i'm an independent retail jeweler and if i'm competing with kate and i come to artistry i come to honestly because i think they sell me good products that will add to my customers well like and that i want to have in my stores ok when i see wait a minute i have artistry products over here in my stores i'm telling my customers these are high end quality jewelry products and across them all cage jewelers is selling artistry diamonds that hurts me as the as the retail jeweler ok so so now on that confusion again just help me maybe i didn't get the record right but it seemed that evidence of confusion was questions and in each case the so questions aren't proof of confusion questions are proof that the the buyers discerning that's why they asked the question and then they get the answer and confusion gone in reverse confusion case your honor is this court said in america taconite is press mccarthy has said in his treatise the kind of confusion that arises in reverse confusion is questions instance the questions result so it's the point is clarified the fact that the question came up your honor is actionable confusion if someone says judge sutton are you selling your jewelry products to kay jewelers that person they ask the question because they're confused they think you may be selling your products to cases that's exactly what reverse confusion is about it seems to me it is in this in this setting where the buyer the main buyer that we care about is a very sophisticated retailers they're buying a bull their big is a big sales the fact that they're asking this and getting any answers proves how discerning they are and then of course the confusion is gone because they get the honest answer is down your honor for that for that customer who bothered to ask the question the problem with all kinds of confusion frankly whether it's forward confusion or reverse confusion it's very difficult to have evidence of that plenty of trademark cases say that you don't require any proof of actual confusion because it's so rare so what you are concerned about lots of people that don't have studies i thought last these cases came studies some cases this point some cases have survey's your honor but surveys are clearly not required and when you have evidence of these kinds of questions evidence what's going on are you doing business with sterling owns that's ringing off the hook i thought there were like four inquiries no your honor there's there's over a dozen the testimony of laura and susan client was that there were lots of calls they asked in the deposition only about certain ones that had been there had been made some notes about the calls and who they talked to and what the conversation had been but the evidence was clear that wasn't it those are the ones that they gave details about i see my time is up well that's the other side but i thought those were the only ones that you could specify now you're on again i believe the testimony of both susan and laura clinton was that they gave details about all of the instances they were asked about and that there were others so one other thing just to give you a chance to answer and your in this won't be subtracted from your rebuttal but you know forgive me but my first reaction is artistry is not a very strong mark in the world of jewelry and other customized craft type things it seems it's seems hard to talk about the product without using words like artistry and so i mean i'm a little skeptical of the idea that this is much of a mark to begin with and that of course is a that's a big part of this inquiry so people want to explain what i'm missing when i have that reaction certainly ronna i think it to levels as you know you look at strength of a mark for both conceptual strength and commercial strength on conceptual strength first of all sterling conceded for purposes of the motion that we had valid rights they didn't want to argue about that in fact frankly they couldn't because they've claimed rights of their own right sort of you can't talk out of both sides of your hat but if i'm understanding correctly that black diamonds artistry yellow diamonds artistry green darkness they're all still on the register the only two that got cancelled was in that early test period back in two thousand and seven when they first started with no media support they registered the words artistry diamond collection ok so your first answer to this is it must be a strong mark as they've used it i'm that means nothing to me i would say you're both deluded in the same way but so now with your next answer the question though is what's the evidence in the record of what any third party has done with art history ok it can't be just a reference to artistry and for jewelry that's not in the trademark sense what the court looks for in third party uses are people using it as a trademark to brand their products all we have here is this hearsay search report from three years ago that nobody ever authenticated and they list it on the identification point they have someone that would testify live to it right have no one on the search report on i've no idea i don't know where it came from we don't know who the person is who commissioned it i can imagine they call somebody from the search company those companies don't allow their people to testify i don't know who would authenticated and even know who the person is who ordered it is that something you want to challenge the regularity with which artistry is used in this in other business is the issue your honor is not held yes or no on that one i mean it's your honor because you think our history is used quite frequently that we've got the two that happen to use it in this case you have two that use it as a mark  fourth one i forget what it is that's not a trademark use that's not use of the word artistry to brand a jewelry product and that's exactly what we don't have you've said many times that context matters for third party use you have to show what the use was you have to show that the district court in this case made a finding that there were numerous current nationwide uses of artistry for jewelry products there is no evidence other than the list facts we believe the dispute here is a legal question as to whether or not the facts in the record are enough that a reasonable jury would find a likelihood of confusion in this case and we believe that there are not this isn't a case of a big company sweeping in stealing a valuable trademark from a small competitor in fact sterling didn't even know artistry limited existed until it received a cease and desist letter in two thousand and fourteen which was nine years after it started using the mark in the marketplace and seven years after it obtained us trademark registrations for the artistry diamonds mark and it's not surprising because what's important here is that the predominant business of artistry ltd is unbranded use the sale of jewelry so it's not a surprise that we didn't find out about them in fact they operate in totally separate channel of trade in the jewelry industry and what they do is they are purposefully have an unbranded business model because they believe that that is beneficial to their consumers and what's why that's important is that the serve six circuit has recognized that it's the parties predominant uses of their marks and in the marketplace and with respect to their goods that should be considered when weighing the fish factors for example therm progressive kellogg and autozone were all cases where this court determined that even minimal overlap in the parties goods and chattels of trade was not enough to preclude summary judgment for the defendant and here it's important to know he just made the point that there's two different places of potential confusion he says well we have evidence of confusion with the ultimate consumers so what's your response to that point my response to that point is is twofold number one even if there were some rogue retailers who went out and put artistry ltd on their website which in fact there's only one instance of the record and we submit that the courts are not consider anything that's not the record because there's no indication of what these other websites look like even if that's the case that is at most one of about six hundred fifty of artistry limited's retail customers which is point zero three percent if i did the math right of their consumers and so the predominant use of this in the predominant use of this mark is with retailers their customer retailers showing it using it as a brand to brand jury it's important here that the jury that is sold by artistry limited to the retailers is unbrand there's nothing in the record by the way that says that artistry limited's retailers do anything at the point of sale date they testified that they show the catalog to their consumers when they're trying to pick out a product now the catalogs not in the record but the testimony in the record makes clear that what this catalog looks like when it's open and they're showing it to a consumer is there are images on the page and then a model number each of those images doesn't have artistry limited next to it artistry limit is on the bottom of the catalog where you would normally see a supplier so what consumers are looking at when they pick the jewelry is actually a picture of the jewelry and the model number with respect to the website that would just help help help me out anyway terms of what you're getting at with this point are you trying to make the point that they're not using artistry limited as a mark in most of the time when they use their artistry limit is the name of the company and it appears on the front of the catalog but it's really not using a mark as a mark is that the point you're trying to make that's exactly right and the second point your honor is that even if there were a handful of websites that listed artistry ltd as a supplier there's a number of reasons why that doesn't create confusion number one again it's not the majority it's that it's the vast minority of the uses and in this court it's important that you look at the the predominant use right in thermos scan there was only a twenty five percent overlap in the autozone case there was a one percent overlap that the two stores reselling the same product and that this court found that that was not enough for a likelihood of confusion and so my first point is that you know predominance matters and the second point is that even if you looked at the retailers which we don't think you should they don't compete as your honor alluded to earlier with sterling in fact our histories own witnesses testified that they think they're totally separate they're retailers sell high end and sterling's stores are in malls and are up to their impression you know mass market and not the same quality what we do with the point which seems pretty helpful to them that it's funny for you to maintain that artistry is a weak mark when it's used as a mark when you register so in response to that your honor i would say two things number one the context matters so how artistry uses its mark as a service mark decidedly an unbranded business model versus kay jeweler who's use it mass market and has tried to saturate the market as they say and use it actually is a brand brand jury what matters is the commercial impression of the consumer and as this court said in the progressive case merely saying we advertise consumers or merely saying the market is conceptually strong which they think is what you're getting at is not enough they need to prove regardless of third parties that the relevant consumers believe that recognize that their mark has strength in the marketplace and we we contend that they didn't do that joe klein realize you could lose by winning this case in other words they've invested a lot in r and r history done in collection and you know it's not inconceivable you get a ruling that says artistry is a remarkably weak unprotected market so you know gorgeous jewelry or just diamond collection exquisite diamond collection on and on we go i think that's a fair point but we believe that this case factor attached to the plaintiff correct so the plaintiff is not showing that the consumers recognize them that market as emanating with certain limited as a source and so that's really the factor i think that is most important on the strength of the mark in this instance because there's no evidence of that they don't even have as in most of these cases you would have a plaintiff that has a state or a us trademark registration and so there are some presumptive rights which are accorded to that you know the strength of the market here there is there is no registration they're relying on common law rights and they're arguing that it has commercial strength and they haven't proven that it's not in the record that's that's our position on the strength of the mark with respect to the one instance of confusion if i might address that your honor the record site is forty seven to exhibit twelve forty seven one which is under seal so that's not page ninety nine line seventeen to nineteen  the e mail that mr baber was referring to actually we don't know whose customer it is and if you look at the record nobody knows it was some person from a g mail or yahoo or a very innocuous email account wrote sent an email to somebody to artistry ltd and said do you have this ring there's no image of the ring there was no mention in the consumer or the customer's email about jewelers or where they found it it was the limited the artistry limited's employee that suggested it was a k product in response and so i would also say that even if there that was deemed an evidence an instance of confusion one is not enough in cases like this where the plaintiff is alleging that we saturated the market this court has found that it's not legally significant even when there are a number of instances of actual confusion as many as six and so what we think is that when you look mentions and there were there were twelve in the record that i counted there were eleven that they had on a list and there which is in the record and then there was a twelve that was just so third hand that his client couldn't even really explain what happened herself it was third party something some retailer allegedly talked to her sales rep and then ms claimed was even clear which the response to his point that you know you make the argument that well they were just questions and each question got answered it shows how discerning the buyers were case that was cited in our brief and the nora beverages second circuit case as well as the fisher stores first circuit case courts have held that a mere inquiry is not enough because it demonstrates that the that the person who's asking is not confused another point on their instances of alleged confusion that i think is important to note is that five of them were admittedly not our histories customers they were in fact third parties and this court recently found in progressive that if it's not a consumer that's confused or making an inquiry that's not legally significant three of the instances that they mention are were actually not a question or confusion at all but they were trusted advisors who were giving advice to his client about how she should deal with this because they clearly understood that sterling was not associated with artistry and then again the one random example that i mentioned about the the sales representative who came back and marc lamb could not really remember what exactly she said or what happened a required and mr bieber is correct that you don't need to prove actual confusion to find a likelihood of confusion but typically you would expect after market saturation in over three years since the relaunch bias by sterling of the artistry diamonds products to a mass market that there would be many more instances of confusion and in some cases courts even find that such minimal confusion would weigh against confusion under the saturation of the market circumstances so you feel there's this  piece of evidence that the district court credited about you know the use of artistry by twenty three other entities and the response was well that's hearsay and it's only judgment you can only use evidence that would be admissible so what we do with that point so your honor we believe that the he's the you're talking with the unsworn ok the unsworn statement first of all limited did not raise a hearsay objection below so we believe they waived it number one number two it's harmless error according to harden the jayco for ninety six f third five seventy nine because as your honor mentioned it would be very easy for us to get simply have that report sworn and resubmitted and that wouldn't change the outcome similarly we could call witness obviously and have her declare that she that she actually went and looked at these internet sites so how do i mean how does this work i mean because you're live testimony would solve the problem but usually you have to identify the person ahead of time so and i was and i'm sorry i think there's two separate pieces in the record that that maybe you're complaining number one there's the fair report which is the ex report that we submitted and in that report ines ferre notes that she had someone go to all of these web sites she looked at them and she identified third parties that was the on sworn statement there's a second report and that one could be corrected by that individual testifying live out of trial if there were a trial correct or it could be corrected by us simply having her swear the report and they didn't raise this so that's why we didn't get sworn in other words your that's  raised this she would have done this below it was harmless ericus us to the second one per se the second one we don't believe if you look at the district court's decision that he actually relied on that but in that case we would be able to if we had to call it a witness we could call the individual who had it commissioned in normally these or it would what that report was your honor was a clearance report and trademark practice a lot of times what happens is for a company to do its diligence they go out and they hire this core search which is  a provider of these services and they run a report and then lawyers look at the report and they give their opinion as to whether or not there's a problem and so we certainly would be able to get someone who commissioned a report to testify but i think the important thing is and the reason that i don't find it problematic on appeal is because it's not it's not even necessary for us to show these third party uses we think that there is there are at least three uses of artistry in the jewelry industry by third parties that the cl testify to one of which is their own customer that's in the record the other thing is that as i said before the strength of the market is dependent upon the plaintiff demonstrating that there are consumers recognize the mark and that it has commercial strength and that was important in the progressive case that was just cited by this court and so this is not a case where there is a incontestable trademark registration as it's some how comes up and then it's behold the defendant to rebut that presumption by saying look there's all these third parties out there that's not the case here here there's not even a trademark registration to begin with that's owned by limited they simply use common law use yes we conceded for purposes of the motion will say that they use it as a service mark but that doesn't mean we can see that it's strong market that it's commercially recognizable by the consumers and we think that's really the important point on the strength of the mark you keep saying i'm a little i feel a little clueless but you keep using the phrase service mark that's distinct from sorry or yes so so in the trademark parlance and it's not really that different but a trademark is a market you used to brand goods and service mark is simply a mark that you used to brand services so in this case artistry ltd is using it as a brand name and the service that they are providing is the sale of unbranded wholesale jury to retail professionals that was  distinction i was making you still have a lot more time your friend on the other side got extra time so if you want more time you can have it but you don't have to ok i was just talking if i may i'd just like to to make a few final points th employer so i think it's important that the court examine the predominant uses of the marks by the parties this is very important spend found in many cases in the sixth circuit to be important in the fresh analysis and it's very important to note that artistry as whole business model is unbranded they go out of their way to make sure their own brand they don't brand the jury that they sell there's no evidence in the record that suggests that they brand the jury in any way in fact they won't even give a catalogue to an industry professional less their vetted their website doesn't let you look at the products unless you have a retailer password they discourage their their retail consumers from even showing the artistry brand to their customers in fact the reason they found out a handful of their retailers what was actually using artistry limited to identify the supplier on their websites was because they by accident found them when they were revealed building their website and when miss clump was asked why was this list of websites brought your attention she said well because we encourage our retailers not to expose our artistry limited brand to consumers and therefore this is on my are just ended which is this notion of artistry limited is there's no brand awareness for laura claim testified under oath that the use of the orchestra name by their customers a quote is a frequent thing because even though we are we're kind of an  unbranded we're also we were brand to our customers and they often use our name to their customers the retail customers and so their customers are aware that they're buying our history jewelry in spite of the fact we're not promoting ourselves as a brand she had other testimony as di honor you just heard from from sterling's lawyer that they really challenging whether we're even using this is a mark they conceded that for purposes of summary judgment we pleaded consistently and we've said all along we use our history as  use it as a trade name and she just said we actually use a service mark as well they acknowledge we have valid rights so that's not an issue on this appeal in the district court seem to accept that she talked a bit about association commercial strength and this notion about inquiries and whether that's actual confusion the fact that all those people contacted our history when sterling started this massive national advertising that evidence shows that artistry the name was associated with my client it shows that those people knew that in the jewelry world we are artistry that's why the evidence of actual confusion is so compelling and why when you have it it has to be part of the record that precludes summary judgment which you did not hear from her your honor is is where in the record is there any evidence to support the district court findings about current nationwide use of all these other artist remarks so on that point  she said that you didn't raise this below in is that right in because normally it's a surprising problem to have in front of us because if someone says wait a second you can't use this in lash someone to test it's true or is going to testify pointed out that she was opining as to things that she had no business of mine about she was a damages expert and she was a spooner today raised the hearsay problem we raised that she was not she could not give competent testimony about likel raise the hearsay promised about one did not use the word hearsay in our objections to ms fares report that's correct but the problem is fair is a case of is not it's not hearsay promise that you're saying oh no the problem is take it at face value for what it says it's just a list it has no information about well who is this user when did they start using it how do they use artistry have the ever sold any products to anybody that's the context that this court requires for third part it's not just west of the other one that you did raise the hearsay objection did judge adams mention that he mentioned that sterling in putting this evidence of third party uses so he didn't mention either of them by name frankly it mentioned you the expert report or the court report so you have not heard from sterling where the evidence is that supports the summary judgment and one final point if i may your honor because the question i'm out of my time but this court like all the courts you can look at trademark cases and try and sometimes they seem inconsistent where you have this factor over here in this factory over there i think on this issue of the goods and how similar are the goods there's an easy way to harmonize the relevant cases here the question you ask is where are these good ultimately going to end up who is the the ultimate consumer for these goods or services if you look it's like homeowners right you had one product sold just to real estate brokers other services sold to homeowners they want up in different places here it's jewelry purchasers in both cases so that you'd like us to focus mainly on the end buyers the question only on the issue your honor of the relatedness of the goods the goods here are jewelry and we both use the same