you know we've read the briefs and re read the briefs and you know as a panel we included that there were some lack of clarity in terms of some of the procedur nuances in this case not so much the big ticket issues that you know at the forefront of satellite litigation seemingly over this issue of the concession what was conce in all that and that was the basis of our requesting the supplemental letters to help clarify so bought a time we got here we had a better grip on there not to you sir you're arguing about it arguing work for us over getting clarification and then i also understand now something is in front of us in terms of the contempt order that was down below so my short point is that you know we've got all that stuff basically there cared would case you know to deal with it we haven't discussed all that that's all the news so it is to say or argument is designed to help the palin to stay in the case and so it is not hopefully won't be an exercise of expanding all these other issues that seem to be there contentiousness and so forth but we shoot on appeal that so that the major thing is given us each from your respective point of view just clarity about your positions what happened what didn't happen and somewhere along the line you can address the motions and all that stuff just the first thing i would like to do is address one housekeeping matter we have it handed to the court today we tried to have it delivered yesterday federal express did make it our oral argument exhibits there is one exhibit six that is objected to on the grounds that the photograph itself is not in the record it is a comparison of the non logo flag bag with a purple bag that much i will not refer to that specific photographs  there is and if you would have brought up bought us a bottle of each one folded you know that would have taken care of it rob we did bring one the other thing that is objected to is something that is in the record of love but not necessarily in the record on appeal we will ask that judicial notice be taken of the summary judgment motion that is mentioned in our exhibits and that summary judgment motion just has a single quote at the top of tab ten in the oral argument exhibits and it's a it's a quote that we can that respect with regard to the procedural posture of the case i will address briefly the contempt motion and no order has been issued on it yet i will address it for the following limited purpose to illustrate why we contend the third paragraph of the injunction granted below in two thousand and fifteen is hopelessly and inappropriate leave a and violates the principle that of an injunction to be now only drawn and precisely the wrong to give notice so that contempt cannot be assigned to vague language the court below has received briefing on it we've asked that the briefing be that you take judicial notice of the briefing because we believe it reflects on the issues that you have to decide on now moved to the issue of the procedural posture of the case the procedural posture of the case is that we believe that in the of both parties to substantive issues before you were pled the complaint clearly pled that there was a contest as to the word issue declaring them invalid at the close of the evidence at the close of the evidence as part of a streety jake maneuver designed and successfully designed to essentially avoid and defeat mexico ors latches defense d i v o suddenly stipulated by judicial admission that there was no infringement of any nature by mexico or prior to the last quarter of two thousand and eleven mexico or had been using its town i mean its texas crown club word mark by that time i'm talking about before the last quarter of two thousand and eleven had been using it since two thousand and eight at least x what about after the on the other states as to the other states they came along later they came in later they were introduced later and our position is clear on on this our contention is that if texas crown club as a word mark i'm not talking about as a design if texas crown club as a word mark which appears on the back of that bottle label and we put a copy of that bottle label in our excerpts if it is not infringing as d r z o stipulated by judicial emission than they are similarly a stopped from claiming that any of the two other words marks as to which we were asking for a declaration and which they pleaded for in their complaint i should say pleaded against in their complaint those two must be regarded as non infringing for a simple reason they do not claim any rights in any geographic descriptor the substitution of colorado arkansas south carolina or the word southern for texas should not make a difference in terms of the validity of those word marks now four of the word marks have been registered with the patent and trademark office and those are in the record and we have record excerpts that we have provided to the court those for registrations are of standard word marks they are presumed to give of the right the exclusive right of next court to use each of those marks in commerce they are presumption of their validity as against any previously registered mark including all the crown royal marks and leave valid as against any contention that they either infringe for likelihood of confusion or likelihood of dilution be done to that there was absolutely no evidence whatsoever presented by the party who had the burden of proof on the standard work marks not a single shred of proof presented at trial and also let me ask you yes and on you raised this with the district judge after the evidence had been presented jury charge conference you asked for j m a wells on a variety of things  some stage the judge shifts to tell me what's conceded or not you go through your motions of i understand what's in the transcript and funny when all that's finished with the judge denies all of those four the motions whatever the numbers so it seems to me that means they go to the jury there are no jury instructions on the counterclaim where there was a response from the jury as to what to do with your counter  you follow rule fifty motion after the jury verdict but they were not presented to the jury there's no way to set aside it seems to me a jury verdict on something not presented so my first question is how are these presented to the friends to any of these other things constitute a violation so i hope i've been clear enough where where are we procedurally on my question you've been you've been absolutely clear here whether have or not it was a good thing  it is and it is equally clear from the circuit's ruling in layered against air carrier ends in services in one thousand and fifty nine and what they said is the following attorneys statements speak for the client and dispense with proof of facts they are not merely evidence they are absolutely bindings they foreclose the matter altogether if you look at my fifty a motion what i was saying to the court is as a matter of law based upon the posture of the case at that point there is no jury issue to decide on the facts as to the trade m i'm here's what i recall the situation what i recall of the situation is that i had cross examined cross examined the vice president for crown royal aggressively on the issue of the work marks she admitted the following they had no exclusive right to the word crown it was only the addition of the word royal that made crown meaningful they had no right to a geographic descriptor in the word mark they had no objection to the bottle label based on infringement and none of the activities prior to the last quarter of achieved she testified prior to two thousand and twelve none of the next course activities prior to two thousand and twelve had been infringing and that was the very that mexico or was marketing extensively its word marks on radio on billboards at conventions and on merchandise so to answer your question i can't tell you that i went into that jury charge conference believing that i had any responsibility whatsoever to make a submission on that to the jury i also will tell you candidly that i felt that if the trademarks were going to be an issue at all the burden of proof was on the i c a o to make that submission to the jury not on us that does go to the question that had been posed in the letter to us recently which is were we taking the position that we were entitled to a declaration or simply to a dismissal with prejudice i might say to you that as long as it's clarified so that we don't have these continued disputes with the  at the p t o and elsewhere i'm not certain that it matters but the judgment should clarify either by declaration or by some other specific language that they word marks the stand who word marks have those counts will had summed up the case by stating that the only issue in the case is crown on a bag i put into our oral argument excerpts all of the judicial admissions that are binding on d r z o and should a stop it from denying its position at trial on which it succeeded in getting a favorable verdict and defeating the latches defense that the only relief they wanted the only relief they cared about and the only relief they needed was to remove crown from being on the bag our client did that immediately upon issuance of the verdict by december two thousand fourteen our client had switched over to the use of a red white and blue bandana not a back not a receptacle not a container not an enclosure and that  that is worn around the neck of the bottle like it would be worn around the neck of a cowboy it identifies with a culture and the spirit of texas and that is the marketing message of mexico or to this day we think that the injunction is overbroad because and i'm just going to go right to the power graph theory it's overbroad and effective because that vague language is now being used as a pretext to challenge that man down on and to challenge a an entirely different brand identity that mexico or switched over to even before trial to try to avoid disputes with the i c a o which was its select club brand it is markets all of the other state whiskies under the brand select club with milne reference on the bag what so ever to crown and no reference on the bottles whatsoever to crown and both of those product trade dresses the bandana and select club are now being cited under pronk three and the other two prongs the previous two prongs as being contemptuous of the district court's injunction remind me did you did you have an object not that it would sequence we wanted his response so whatever the sequence was it well the the the language he adopted his own most verbatim what was proposed so we had an adequate opportunity to brief extensively briefed by response and then server apply their motion for injunction so we raised our interest was already on the table and that briefing that you're talking about this language and the kind of language that he adopted the language he adopted the only change he made your honor was to change alcoholic beverages to whiskey that was the only change you made speak briefly to the two prong separ see the third concern of whether or not the way it is teed up to us about the scope of this injunction was fairly if you will teed up before the district judge either in some kind of post trial motion or provoking a hearing something more dramatic than just papers filed because you know i've already kind of gotten the feel for this case and turns of just all this paper flying but you're  i may have misstated the bread and that the red white and blue bandana had not become an issue because the i c l made no issue of it before the injunction even though they knew about the bandanna they made absolutely no objection to it before the injunction issued so they didn't change their proposed language there was no reason for me to raise the bandanna and therefore i address the fact that i felt and i do feel that the injunction language is inconsistent with rule sixty five the specificity requirement and i addressed in our briefing our position that the third paragraph of the injunction was so hopelessly think that  perpetuate disputes and that's exactly what it's done right well i will just say as as it is mona you color me very skeptical that this issue a to the court of appeals was trying in all its panorama to the district court i'm not saying that as a criticism i'm just saying just based on where we are read that i'm very skeptical that this was framed in all its potential and put it to the district court but it too fairly appreciate or whatever the back and forth on on this scope of injunction you know matter just because it away you know  so the question that comes from that is you know we're not ordinarily in the business of writing injunctions in the first voice so even assuming you know you would be to be persuasive  adolpho you know from a view of exactly what was being continued to really deal with it so we didn't have an order from him where he's fully taken into account that not a granted it's a matter and in an ordinary course in a way we get things you know then we're dealing with well this is right this is wrong and it's not missive of course and but just the way it is casey is i'm just real skeptical that that didn't happen so i don't know if the relief i want to be clear that you like to divide it in if i might into two time frames we never and i wildest dreams imagine that we would be here today on a contempt motion that was filed in apparent response to the announcement of our opportunity far larger than here because that motion attacks a bandana which had never been challenged even though counsel was aware of it before his injunction language was accepted we never dreamed that the select love language would be challenged on on this injunction because select club no one has suggested that select club violates infringes any rights and in fact the council had stipulated in response to our attempt to amend our complaint to vindicate select club as a new brand as a precaution so that the i c l was not had not challenged select club so we never dreamed we'd be at this point however backing up in time what we have said about power graphs one and two of that injunction are the following that they are inconsistent with the judicial admissions and the judicial astop of that follows based upon the stipulation by the i c a o that the only concern they need had needed to have addressed was to remove crown from the bag that was what they had said when they succeeded in getting their favorable jury verdict it's what they told the court as well so that was their position and we think that the injunction should have held them what had what happened and then i'll stop what happened is that instead the trial judge did not even consider the effect of the judicial admissions or judicial stop admitted during the proceeding was absolutely valid and non problematic and did not in any way pose a threat to them or their product and that contravenes a strong public policy in favor of competition this is not a great zone it's not a safe distance issue they articulated and delineated the relief they needed and then they proposed a language which would prohibit the very trade dress that they had just an all day jury conference in the record and i just want to read to you the first three jury instructions that the parties agreed to number five a search claims against mexico for trademark infringement unfair competition trade dress infringement and trademark dilution so there is no abandonment of the trademark claims we want on the trademark claims in the context of the trade dress claims and what hangs over that whole thing when you practice in this area when you get to court and when you get before a jury or judge what they can determine is not some hypothetical world in the trademark office they have to deal with what's actually going on in the marketplace and what was actually going on in the marketplace was that every single product that mexico was selling in the marketplace which is what the jury needed to decide every single one of those products had a bottle that said some state or some geographic region then a big word crown and then a little word club which then was put in a bag that also said geographic region be it texas south carolina whatever then in big letters it said crown and then in little letters it said club so that was the factual presentation to the judge to the judge in the jury and of course on those facts even though we had trademark claims we had trade dress claims we had unfair competition claims and we had dilution claims what the jury decided was what they were doing in the marketplace was causing confusion there was no free pass that if you just take the bottle out of the bag then it's no problem there was one concession by the audio in this case and that concession was there was an early version of the texas crown club bottle that did not come in a bag and the vice president in charge of whisky for the audio made a candid concession she conceded it at her deposition so it's not like this  last minute you know hail mary body idea she conceded in discovery and she conceded at trial candidly that at the time they saw that i was aware of it and they didn't take action and that she personally thought it was an infringement but that the company took the position that it have bootstrapped a couple of arguments here one of them they say is that you admitted that the flag back was not infringing when it didn't have a logo on it it was always the i just position that if you use crown and a button a product that says crown for just tell you what the record in this case shows for starters there was no evidence that that bag ever even existed the flag bag that they tried to put into evidence by putting it into the circuit last night at five o'clock it's not in the record below there is no bag without a crown on it and that at this exhibit exhibit six which they've now withdrawn because i pointed out to them it was never brought to the trial the jury never saw it it's not in the records so  began the earliest on a certain date when it did that and it previously uses were not infringing now in your brief now you state that the use with the texas flag bag without the lettering was so in significant numbers that we were concerned about a response from to that was that's not how infringement works so i don't i don't know about that but i thought it was given that they were selling their alcohol in a texas black bag without a laddering but that's not exactly true your honor it's it i'll tell you because i know the record better than ality they're not their president said he was trying to source bags they had always wanted to put these products in bags but the bags were the ones that they said they could get they were very expensive because they had to be hand sewn they were only they can only get like a hundred of the bags at a time they weren't selling that product in bags until you're on it until the end of two thousand and eleven they've then got the texas crown club ads it's clearly in the record they then in two thousand and twelve and two thousand and thirteen they had line extensions for the other jurisdictions and they changed the appearance of the mark on those bags to make it look even more like crown royal so that those bags those early bags it was basically a test market that the  even aware of and i would submit the audio had no responsibility to know that secretly there test marketing a couple of hundred bags here when they then in two thousand and eleven at the end of two thousand and eleven and moving into two thousand and twelve in two thousand and thirteen they're now slugging the market with products where every single product had texas crown club or south carolina crown club on the bottle and the bag to make it worse they changed the crown appearance on the bag to go from a fairly ordinary version of it on the texas bottle there were two significant differences and it paid twenty six of their brief when they told this panel that the new line extensions were virtually identical to texas and that's why they bootstrap this judicial stoppel argue they say if you agree that the texas bottle only without bags didn't infringe then these other ones also don't infringe but two significant things one the word crown now magically appeared in the color gold which is the color that my client's mark appears and the second thing they did is they no longer put it in common words like the way your names appear they took the common slant and they changed it to what is called a cursive slant that's virtually identical to the way crown royal appears on my client's products let me ask you about the jury charge and the judicial stop you're in charge conference and issue a stop on the basic argument here is that this did not need and should indeed shouldn't have gone to the jury and i t's a procedural question if in fact it wasn't i have no doubt you feel and you mine but if we were to air and say that there was indeed a concession at this prior to or and that was discussed a jury charge conference is it proper for us to determine whether if you slide in another stage name or if you put a a region like southern instead of a state that that would be covered by this the same analysis as texas crown so long as it was in the same kind of bottles with all these without all these changes that you're talking about is that would you agree that is correct that that's not something that there was any error in failing to submit to the jury when the when the judge denied their motions pretrial jury instructions and then denied their post trauma motion post verdict motion first is it about i mean first i mean judicial stop with your stop your stop but if the judge says you're not you're not a stopped and here we are a jury charge conference and you have a count to claim if you want to give to the jury give it to the jury and they don't that that was a big part of the reason for those priori given questions to you just where are we on these j m oh well so it back to your answer they never did that but i'm going to go back to the first point i made you are intrigued mark law and unfair competition law all the trier of fact can determine is the facts that actually replicate marketplace reality that is black letter trademark and unfair competition law you're not allowed to say oh what i'm doing in the marketplace has been determined by the jury to be infringement and dilution so you know what i'm going to do how about what if i change the way my product appears in the marketplace judge it in or they've already conceded that that bottle over there is not a problem if i change what i'm doing in the marketplace will you countenance that for me and that's what they're actually asking the fifth circuit to do which is i've never heard of it i've never heard of it they are stuck with what they did in the marketplace and we presented what they did to the marketplace to the jury and the jury concluded that what they were doing was infringing was diluting and constitute unfair competition and the jury was cracked which is why they're not appealing that part of the verdict the jury honour's also included definitions not just of trade dress i read instruction five talks about what the claims were in in instruction six and these were agreed to instructions in fact we negotiated and we were we have known mr raman forever we do this for a living and we were able to come up with these during stretches in judgment or did a great job of saying come on if you can agree on and there's not going to be an issue we don't have to come back down here we agreed on these and an instruction number six talked about trademarks and trade dress and it defined both of them but then again at the end of the day what the jury had to decide was what's happening in the marketplace is that causing confusion and they actually even agreed this is a stipulated jury instruction on the issue of likelihood of confusion and the question put to the jury was one question for your determine and this is the at the record s r e two which is at the  appeal record of forty two eighty nine and ninety number seven like that of confusion one question for your determination is whether the trade dress of mexico's products is likely to cause confusion among ordinary consumers as to the source sponsor sponsorship approval or affiliation of the next course of goods in other words you must decide whether ordinary consumers under usual conditions exercising ordinary care would be likely to believe that mexico products are ciliated with ya james cromwell products that's black letter trademark law mr raymond knew it i knew it we agreed to that and that's what the jury decided so i want to back up  session in the middle of otherwise you know star lawyers who do this for a living i mean you all operate in this world you know all the time good at what you do try it you get a jury trial is in the summ judgment is a jury trial you tea it up you got jury charge i have no doubt you have some sterling preach our water and judge hidden has been around a long time really good trial jurors but in all of a sudden think we're trying to figure out procedurally what negate were you world class lawyers did you know down below you get my point and i do i do i think i have a good answer for you that said crown it was game changing ok they never saw that with crown still not on the outside you just talk oh no they never smile client never saw that bag and that bag never was part of the trial other than a little bit of testimony by mr morale us who was there president who said we tried to get that bag going and we couldn't it was too expensive and it was it was a fleeting use that created no obligation on my client what my point did become aware that the end of two thousand and eleven was club which was only in a bottle which they said i don't think we can stop that they then said oh we're going to put it in bags that also say crown and then we're going to line extend this thing into all these other jurisdictions and they're not only going to say crown on the product in the bag we're going to change the crown portion of the mark to make it look really a lot like crown well and my client through a set understandably so that's when the lightning rod hit so to back up to your question judge stewart is and was under no obligation to tell the truth number two g i joe did not know about the bag that didn't have crown on it in texas and there's no they will not be able to point to any evidence in this case that shows my client knew about that bag so it couldn't have conceded that it was not infringing because he didn't even know about it and number three well again go back to what happens when the jury looks at a set of facts they found that those marks on these other bags were infringing in the context of their use they found that there was a likelihood of confusion after the court based on jury instructions that were stipulated to define trademarks trade dress likelihood of confusion and they found that what their client was doing was causing a likelihood confusion ok so what do you have no problem with an agreed to and what do you have a problem one thing and only one thing that we agree to we agree that we passed on texas crown club when it came out in two thousand and eight and its original label which is different than the label that they have now because it's gets tricky but the new label has a little line in between crown and club which in our view separates the mark that makes crown stand out even more there's an original label that just as texas crown club on a bottle label without a bag and we can see that that for purposes of everyone in this case can assume that that is a non infringing use what they tried to you know they wanted to let the marketplace work itself out but what they were doing is they were dipping their toe in the water and we only learned that later they dip their toe in the water and every time they did something to design their new products it kept getting closer and closer and closer to my client's product and the law is also clear that you don't have to sue someone when they sell ten bottles or a hundred bottles this was a progressive encroachments in my client acted diligently once their true intent was known and so what they want to do now is without ever having putting these questions to the jury namely if i only did these in bottles and i didn't throw a bag on them is that not infringing they never put that question to the jury even though they had a counter claim that said i would have argued at the time that that's a proper question based on the facts of the case because of the ask i mean it goes back to what you're saying earlier that the potential alternative ways that they might enter the marketplace would not be appropriate in this kind of and trot had any of this been raised with a judge in here that last part where you were saying earlier that the possible ways in which marketing might occur that have not yet occurred in the marketplace or not properly before a jury in a case which is  their counter claims are you telling me we're all based on not all of them but but the four we're talking about based on in treason to the marketplace they had not yet done not yet marketed at least some of these maybe some not a judge hi they they tried to bootstrap the limited mission idea and they tried to bootstrap that into a license and an advisory opinion from the court in the form of the motion for judgment as a matter of law and then they did it again in their rule fifty nine emotion that the other products in the other jurisdictions if they then didn't have stylized marks if they just had plain marks just on a bottle they too would be ok it never got to the jury and it was their obligation to get that to the jury could you turn to the injunction now and whether it's overbroad obviously our position is plainly not overbroad only in the third paragraph the third paragraph is you know your honor there's a lot of cases and it's in our brief that this language when it went in judge sees what happens in judgment or as a judge stuart pointed out is a very experienced trial judge it was a blasting forum i think everybody had a great time  that there was in there was confusion in the marketplace and by the way he also listened to i've been doing this a long time i've never seen evidence of actual confusion the way we were able to demonstrate in this case and that's in our brief as well but he has t discretion to say what do i need to do to protect the audio in the form of the permanent injunction because the lanham act provides for a permanent injunction first of all it's customary when you want to trademark case you get an injunction sometimes if you do it early injunction if you wait till the end of the trial you get a permanent injunction but in the third paragraph this is customary commonplace language that has been approved by many many courts in the circuit i would refer you to our brief on that topic were in addition to what the two specific things were that they were being enjoined from their also enjoined from from putting out more products that are confusingly similar to the crowned world trade dress and they know exactly what they mean clever they have two products in texas they have one called texas clown club and instead of putting in a bag they put it in the bin danna that looks just like a bag point one and point two they have a second product select club which doesn't say crown and they put those in bags and guess where those are now on shelves in stores throughout the state of texas there's a giant texas crown club display with texas crown club products in that and guess what else is in there texas selects is in the texas crown club display in a bag in clear violation of the injunction so i didn't i didn't stipulate to its addition to this record but now that they put it in that's my take on it and i think you can be guided that if anything those provisions in the in the in the injunction were actually i'm playing back no word on the outside it says texas it says elected club depending upon the jurisdiction but it sits in a giant display that says texas crown and judge hitler in his discretion enjoined the use of using texas crown or the other state crowns in association with bags and that was within his discretion and a good thing for my client that he did that so your view the injunction as current as it's currently worth it embraces what you've just described to us is the display of these other products the injunction provides that you cannot use taxes crown on a bag provision one provision to you cannot sell  crown products in connection with bags which is what they're doing and then the third thing is enjoying them from doing what many many courts have done is from doing other things that we can't think of just yet that are also likely to confuse consumers the latter that you just said so i'm asking are you saying that by placing the bandanna bay which then handling it but would in a display which does i'm just saying is it your position that the injunction that latter part covers that not previously unseen i think now seeing provision hope that judge it doesn't hear me say this but i'll be straight with them i think the bandana issue is a closer question i think that's a tricky one i think putting putting select club products in bags directly underneath a giant texas crown display clearly violates not to have some of that's that's that's our position is it your position that not the bottle but the placement as you' described it is your position that the injunction as currently worded covers it right that's a summit with respect to the use of bags under a texas crown display the answer is yes it is our position in the content laws and that the  also violates it but i'm conceding that that's a tougher question for us all right thank you sir thank you all right ar infringement occurs when a product is offered for sale it does not he or advertise for sale it does not even have to be sold in order to constitute infringement there is no quantity threshold in the lanham act for determining when infringement occurs and when a litigant stands before a jury and the court and states as a judicial admission there was no infringement before the last quarter of two thousand and eleven they are speaking to the standards of the lanham act section forty two and forty three it has nothing to do with quantity de minimu quantity can go to the issue of whether or not there is a need for remedial action at that point but it does not go to or  it does not go to the issue of whether there's been infringement and the in the concessions here and i'd like to read the concessions because i think they refute the presentation that mr o asked the vice president of the show do you believe that the i c a o has an exclusive right to use of a velvet bag for alcoholic beverages the answer was unequivocal a single word no have you ever registered any bag other than the iconic purple bag with gold stitching and goldstraw drawstring that we've seen this morning the answer again was no our client immediately abandon the use of the gold cursive crown on all of the bags for all of the states except the one being texas crown plaza which was not gold cursive and was admitted to be non infringing and as to that we stopped using crown on a bag and went to a bandana around the bottle so we feel that we complied with what had been stipulated by coun and also required by the injunction completely in that regard let me go to the question that was posed about whether or not there was knowledge on the part of diaz yo about the unlabeled bag being so first one it was a tab seven now i'm turning a tab eleven mr o'rourke says to the jury in closing argument you have seen them sell it in crown in bags and my client didn't sue it is about crown on bags that is all we want them to stop doing here stop using bags that say crown so the suggestion that know was not aware that we were selling this crown product in an unlabeled bag is inconsistent with the statement in closing argument again the there was a statement during my opposing counsel suppressant ation that the trademarks we're in issue i asked the court to take a look again at tampa eleven at the bottom mr o'rourke makes this judicial admission to the jury claims in this case are framed by the jury instructions and the verdict sheet and the claim in this case is that their use of crown on bags infringes my client's trade dress there is no claim for trademark infringement by the texas bag hyphen bottle in enough itself there was simply he says goes on to say that is pure fiction there is nothing in the record on that he was correct there there was absolutely no submission by d i v o to the jury of any of their claims for trademark infringement on any of those work marks and they pled each one of those word marks that we were using i'm not talking mr o'rourke has confused two things the design mark and the work marks the designs we have absolutely abandoned we're not using the gold curse of crown on any bag or on any label however the word marks should not be in our not infringing because of the reasons that i mentioned in my earlier presentation if texas crown club as a word marked extensively marketed prior to the fourth quarter of two thousand and eleven was mildly we'll do our best to wade our way through and get it decided in due course all right all right we call up