as this court said in two thousand and one in this clicks villiers case trade dress cannot be both functional and purely aesthetic no the touchstone for aesthetic functionality is whether functionality the test inquires by the protection of the feature as a trademark would impose a significant non reputation related competitive disadvantage no such disadvantage exists here because the district also found there is undoubtedly a wide range of expression for scented wax mourner's because the combination of other design elements is almost limitless so whatever else we might say about since he's claimed tra court to reverse as to the copyright claims since he believes and this is one of the rare cases in which there is ample direct evidence of copy such that this can be and should be a jury harmonies chinese manufacturers actually used to kokopelli as a model for harmonies ancient took photographs of the prototype harmony ancient and the sensory kokopelli and sent them back to harmony grants for review and and potential customers these would be large scale retail buyers in that powerpoint on one of the slides he stated the following through our design teams in the us and asia we have become the sens a reason for buyers to purchase the harmony brands product we submit that that is direct evidence of copying and that that statement has significant implications for senseis trade dress but for purposes of summary the texts for this appeal rather we submit that that is a question for the jury not a question for the court on summary judgment now to the extent this court has any concerns or reservations about court at summary judgment the intrinsic test is only employed by a jury following trial the dispute i think at this appeal or this stage is whether the district court impermissibl the court then engaged in the extrinsic test which as i've articulated and i think it's an accurate representation of this course of law is a fundamentally three step process the first involves an examination of the ideas to determine excuse the examination of the works to determine whether they represent the same idea criteria for that examination includes the type of artwork involved in the periods used the subject matter the setting for the subject of course here both parties make ceramic wax warmers of almost identical dimensions they're used in the same settings homes opposite the cetera as home decor and ultimately to fragrant a room they're sold a bit differently or they are sold different that's right you're on that but i don't think that that has application in the copyright context for talking about but the that is accurate the court then engage in the second step of the extrinsic test that is an evaluation of whether the to broad or narrow copyright protection and here the district court said quote all four warmers in this case shall be afforded broad copyright protection against substantially similar works now at that that the court in impermissibly engaged in the intrinsic test in fact what the court said was that it quote must now turn to the entrance a crossing of the test and what follows is the heading in title intrinsic component and then three pages of an evaluation of each of the works as a whole the court stated at the intrinsic stage we ask and i pause parent that it leads to note that that is the error the district court does not ask anything of the of the intrinsic test at the summary judgment stage and yet the court said at the intrinsic stage we ask whether an ordinary reasonable observer would consider the functionality those form the basis for why this court should reverse the district court's decision and allow sense you know opportunity to try to case to injury counsel i realize those are your your primary arguments were presented to reverse the summary judgment but did you want to also address the issue on the award of attorney you know i did i was went on the summary you don't have to worry about the attorney fees that's our primary issue or argument for this is you lose on that then i want to know if you want to address that now or wait for your the court expressed concern about senseis evidence as to secondary nini and likelihood of confusion but course by that point since he had already appealed the only issue president summary judgment had in fact filed its brief on a and four hundred thousand plus and costs i believe it was a collective total of just under four hundred thousand ok how much of that because it was a word in fees under both claims that there was no need to apportion out and so and so the court did not a portion of it so if if we were to affirm the summary judgment but object if your life snowman or a coke appellee to depict the southwestern theme then it would have a non reputation related advantage and that would make it functional the those two men perhaps present the best is not the subject kelley and your product was your client's product was wasn't harmony yes right yes your honor but and then it some point in the executive of your company becomes so concerned that these two things look so much alike that they actually asked them to make some changes and that's when the apps not direct evidence of copying all the witnesses testified changes were made so that they didn't look alike in other words the intent was to make them look different and the reason really loud and the defense is typically a defensive lineman and and the referee has warned people if it gets any louder they're going to stop the game or impose a penalty or something you'll see a defensive linem origin's to look at the shapes and maybe that's a simple direction in which the company wants to go there's a reference to something based a bit like something else the only evidence that's right that all is the one instance the comparison of coca cola to ancient didn't even the district court say they had a similar color and look the color is the same in the sense that any old looking pottery is that color or shade of that color and so that  ultimately needs to be found is either virtual identity or the very minimum substantial similarity between the actions themselves it's not enough here to point to an idea which is all they've done it's impossible herschel impossible to depict a winter theme without a snowman and these are encouraged under our intellectual property laws and nothing more than that happened here there's no evidence of tracing or copying there are cases this course handed down where this entire phrases the north case lifted and substantial portions are copied verbatim word for word from one work to another that didn't happen here at best what we have is a copy of an idea not a particular expression of it and that is permitted under the cases the analysis of traitorous ultimately  there was no evidence of likelihood of confusion or really could there as was pointed out these were sold differently through very different channels since he sells one hundred percent of its product to its own consultants who then have a multi level marketing  generally a jury question i think that's fair to say yes absolutely your honor but in this case judge when no i didn't do that what was conducted was the analytical type of a parsing out of elements in comparison that is part and parcel of extrinsic and that's all that was done by judge when bill went through many different elements and compared them he did so for each of the products and there was no one else is of a total look and feel no opinion rendered as to a total look and feel at any point  no direct or substantial similarity with respect to copyright infringement of the court to correctly decided a motion for summary judgment and i think it's again simply the case that what is being done here and the substantially the same arguments here for that reason we think the word of attorneys fees is appropriate because the arguments were groundless they were unreasonable and we've minutes and supplemental briefing if it please the court with respect to rather than a piece of discretion so even though the supreme court's recent patent cases look and different direction and apply abuse of discretion  is an identical statutory scheme that was predicated on trademark and copyright also faces in the court announced there that the trial court's just record should have much more discretion in all aspects of attorney's fees determination including we claim no exclusive right to the use of snow not even to the use of a snowman on impacts one and i want to make that clear we are not claiming a right to those means but the discussion this morning about the similarities and differences in specifically the kokopelli warmer point to the fact that this is a question of fact and should be decided by injury i invite the court in to have to take a step back and look at this case as i do from th thousand foot view sensi has invested untold hours and over one hundred million dollars in his eye ning protecting and marketing its products they were novel and had not been on the market before the market love that copy under those circumstances there was nothing said she could have done except sit back and allow to continue or to seek the aid of the court in protecting its right issue assuming that you don't prevail on friends round and that the summary judgment stand is the standard as to what is an exceptional