afternoon your honors may please court earl silverstein for the appellant committee grill holdings incorporated i think it's important to start with what happened last time we had for this court at that time the panel awarded the trademarks within or a point six point six south carrollton avenue to uptown grill l l c the court then reversed and remanded the matter to just record with very specific instructions by judge jones at the end of the opinion she specifically directed the trial court to consider whether uptown grill should be bound by its pleadings representation in court with respect to a license agreement for which its affiliate grill holdings paid a million dollars she further directed the trial court to at a minimum review all facts and circumstances of the parties contractual relationships and and a political trademark law before reinstating relief plainly beyond what was pla the trial court simply did not follow those instructions when on the remained that is why this case is distinctive it is not a case of an interloper coming in and using trademark trade dress it's a case of a former licensee who's license was terminated at their fault by continuing to use trademark trade dress that's why this is different it's a combination of contract and trademark law the court the first circuit found the license to be binding upon uptown grill as a sub licensee and also porn charges grill as a sub licensee of the holdings the panel it appears in the license agreement it does not appear in the bill of sale which was a dock when used to transfer the trademark however throughout the appeal these brief he refers to the term marks in an attempt to gather and cultivate those trade dress the license under exhibit one point one has five items explicitly listed including the trade dress associated with  grill restaurant i'll talk more about that when i get into the trade dress issue the remained had the effect of reinstating the other claims that were pled in initially in the trial court which includes trade dress infringement trademark infringement infringement of louisiana service morning undisputed is the fact that two weeks after the bill of sale was executed holdings paid a million dollars to license the five items listed on exhibit one point one of the license agreement if in fact they obtained the trade dress in the license agreement and in fact they tamed the trademarks everywhere not just confined to carrollton avenue why did they pay a million now the deter i don't really know understand why we're talking about the determination the ownership anymore or really don't because they never prayed for ownership outside of the their original complaint nor in any amendment they never filed an amendment asking for that so why did the court below not just dismiss it on that alone the pleadings uptown in response to a motion summary j but instead at oral argument judgment lodging refused to accept that stipulation she voiced concerns about geographic zones there is no geographic zone because it was a an agreement which not does not come out of land him it was an trademarks located within a ripon the property that's correct otoh it also conveyed a lot of other stuff arsenal items by various items f f n e i assume you would agree that the stick cookie put in is one example it conveyed the cooking equipment that you could find on the property yes i assume you would agree that there is no problem with the code or kicking not cooking equipment at carrollton and moving it to chargers moving the chargers right well they he could do that but that wasn't that but the point is why couldn't we construe this bill sale to provide rights that you find on the property but to allow coder to then move these rights elsewhere simply because that's what the court that's not what the court award of the cord awarded the use of those trade max trademarks on or within six point six out there to nab and i didn't say you could start using them anywhere else i'm just trying to construe the bill of sale right in the of sale one of the problems but one of the issues with the bill of sale that we had obviously was the question of trademarks being included under the term tangible personal property we took a position the trademark for intangible property we're living with that we're bound by that we're not disputing now that the bills out transfer trademarks within our point six point six south carrollton avenue and the reason that it that the court found there did was applying the  to be applied to this case relative to trade dress the term trademarks was in that list of items that you just referred to in the bill of sale trade dress is not in that list so again if we're going to say the specific controls the general that thing legal theory must be applied in this case as well as to trade dress so what's the trade what is a trade dress for trade dress is defined in the licensing agreement as all the trade dress associated with community grow restaurant everything that's using the word in the definition the well what our what it does at one that was actually in two thousand and six there was only one community grow restaurant so all you do go see what's in there and everybody knows what's in there it's the harsher shade counters it's the stores it's the open pike cases it's the seating range once it's columns out front we i gather it's the building and everything in it but why would live include trade dress trade dress was not included within those items that were transferred again you are going to have to be exploited why was it included in that don't have to be specifically identified the bill of sale you sold the whole the whole bill of sale the bill of sale was found to say that the specific controls general that's why the word trademarks can override the general which said personal property trademark is not personal problems and intangible property i think we all should agree upon that so if this specific controls in general you can't then say well we're going to shoehorn it we're going to say since they gave you it includes the f f n eight we're going to allow you to use that trade dress because that f f t makes up the trade when the license was still being drafted after the negotiations were completed the license was being drafted the bill of sale was then came about because mr coder wanted to obtain the real estate prior to executing the license agreement i think for the purpose of starting to renovate rehabilitate the the the license agreement i'm sorry the building and as such the bill the bill of sale was drafted with the intent of providing the use of those items there pending t execution of the license agreement which took place two weeks later so again it begs the question if you've got trade dress if you've got the trademarks outside of carrollton avenue why did you pay a million dollars two weeks later for it to enter into a license would you make of the fact that the bill of sale says trademarks names logos likenesses accent and all other personal and or movable property just what it is it's moved in its movable property as this court said in remarks or movable are for the trademarks are movable property the items that the trademarks were on were movable property there too was menus that had the trademarks on them they were glasses that may have had the trademarks on them there may have been napkins it would just be clear it's not conveying items that happen to have marks on them to bill sale specifically identified trademarks trademarks collaton selves it's correct as as i guess a movable property wrecked as i does not just reinforced the general presumption that you don't segment marks you have one marking it could be owned by one person or sold to somebody else and used elsewhere the again that's where it came down to the legal aid him being applied of the specific controls in general louisiana rule of law which was relied upon both in both courts so again there's nothing in the bill itself says trade dress it does give them furniture fixtures and equipment but as this court said in two pesos it's not that you're getting items but it's rather the arbitrary fashion in which you combine those items that makes it distinctive inherently distinctive but what do you consider trade to us when we consider the trade dress is the way that that restaurant is set up well the wait staff and the building that's it's not i'm not talking about the building or are not from about the physical building itself i'm talking about the interior of the interior design of the restaurant is set up with the harsher counters arbitrary combination that was designed in and used for over sixty years by the community grown restaurant of those functional items that you just referred to that plus the other items are listed as the waitstaff to the attire for the waitstaff the ordering the way they call out the orders the way they provide the checks the way they strove to provide the straws to take to the customers and straw popping it's called those are all part of the unique routine developed over sixty years just like in two pesos what you're on are suggesting is is what was the sickly rejected by discordant in patients where the court said you can't say we're going to use these functional items and then turn around and say that they're they're not part of the trade dress because it's the combination arbitrary combination as functional items which makes them unique inherently distinctive but they're there in lies the issue with that but if you go and you say are we have two tracks you got the license and then you have could have lanham under license there's no law that says we have to nothing in the ways and it says we have to define the trade dress the license says knew exactly what it was he said i want to retain the feel of the look exactly the way it is i don't want to change it so that is the reason so under lanham even if you go to a land say ok we throw away a license for men lanham we can show that because an arbitrary combination is elements it has it is inherently distinctive we don't have to get into secondary meaning at all everybody knows that it is so seeded with the community or restaurant likewise the district court judge didn't want to follow the provisions of the license even rated it with a license says licensee license or own as all the life or property licensee agrees to that acknowledges that ownership license do nothing to attack that ownership of the intellectual property on exhibit one point one which includes specifically trade dress the other issues that  come up as when we're talking about the license the license had a specific prohibition that one is terminated the licensee could do nothing take no action whatsoever which would even suggest an affiliation so therein lies the question a judge  said well i'm not going to give you trade dress because there is no possibility consumer confusion and i'm not giving that because there is no existing and operating commute restaurant other than the one on carrollton avenue that's not required under fifth circuit's decisions in the presley case in multi unit competition is not required it's the affiliation that is the indication of consumer confusion the entire public of the city of new orleans affiliate assume that the restaurant charters was part of the uptown grill uptown location on the river bend there's no question about that so it's the affiliation from which causes the consumer confusion discussed at any point when a plane it seeks to enforce an unregistered trade dress there are several factors that it has to prove in order to be  last of those factors and i will hopefully have time to go back to the front the the first ones is whether there is a likelihood of confusion i want to start by saying that i think there's been some confusion about what the standard is at least once we talk about the possibility of control but that is not a standard trademark law not sure it's ever been a standard trademark law it is the likelihood of confusion that is the standard in a likelihood is a much more akin to a probability of confusion it was incumbent upon the plaintiff in this case the appellant to prove a likelihood confusion and how do you do that you do that with actual evidence the last thing he said before he left the podium was that the entire town of new orleans knew what this meant maybe but we don't know that and when you kind of survey you know me i'm there is no evidence admissible evidence that was ever introduced on any of these things much less that one thing the closest they came were screen shots from yelp or whatever with people whose names were the size or record in iowa a need people that we can't identify we can't cross examine we don't know if it is their cousins or somebody else there is no admissible evidence milan specifically addressed those screenshots cited a wal mart case which says that is classic hearsay and inadmissible but they were required to come forth with evidence of this i think i know why they didn't because there can be no evidence of this there is no community grill in operation other than the one my client they bought cho you were here seven months ago we were we were talking about this case on and on trip number two when our own children were three and i believe just feels this should be our last and we agree but we bought everything we bought the stools it specifically listed in the the bill of sale we bought the counters we bought the kitchen to commit everything they identify as their tra dress we bought we bought it all if a customer would be confused with anything the only thing it could be confused with is something that we own all of they have not since two thousand and five they have not operated a single restaurant under any of these trademarks trade dress a service marks or any other term you want to put on it their only business plan for the last fifteen years has been suing us for money that's it they've done nothing else ok so if there was going to be confusion i would ask them to whom would they be confused with the only answer is that they're confused with my client's business that's not confusion that that's that's normal business you want to have your brand be consistent and just show you you mentioned at the very beginning we bought it all i mean if we wanted to pick it up we want to take the pike case of little take the stools of point to take the to the counter then make a mouse clock of all things if we want to take that loot charter street or memory road or anywhere else we have the right to do that would you install in my opinion transferred after this last round of summary judgements from a trademark trade dress case to just a basic issue of evidence if there is their responsibility under the law amazing attached an exhibit to a different motion the court notes however that no admissible evidence has been offered to verify the existence of these alleged elements there are no photographs she specifically to this motion on the trade dress they offered nothing judge don't show it's like you claiming that your necktie or that mine infringes the trade dress of yours we can't see yours yours is covered by a black robe the court couldn't see there because there's no evidence in the record if there is no evidence how could she base a ruling in their favor they made it easy for her and frankly i think they made it easy for all of us because there is no evidence in the record it is a basic failure that in our opinion judge the bill of sale is all encompassing i think that's what that this court agreed to five years ago and started three years ago matter fact we were here three years ago almost to the day you know that all the trademarks names logos likenesses that cetera as you understand that but then i think there's an interesting argument that you have under the bill sale i'll just be candid about that what troubles me is that what's the license agreement for right so i think my answer that is going to go back to where we were three years ago i mean this is a question of ambiguous contracts as we bought it lock stock and barrel that's our quote and i think that's what happened under the bill sale correct under the bill of sale all of which is troubling to me knows if i understand the chronology you all did the bills fail on august eleventh and you did the license agreement judgment we played very specifically we were in we obtain through the bill of sale the trademarks within upon carrollton i think that the evidence showed that the license agreement was to open other restaurants i don't believe that that is necessarily a precursor to them having additional rights in terms of a trade dress for instance somewhere else that makes sense i'm not sure it makes sense you're saying the license agreement was to open up other restaurants but isn't your theory that the bill of sale gave you the right to open up the restaurants yes so is your idea then the license agreement what sort of balance is spenders you think you have of being on the bill of sale but you know laws are big us you never know what a court will do so the license agreement sort of is like a quit claim deed and you're just claiming you answered you ask mr silverstein a good question did he draft those documents he did not did you in one of the other one of the differences i think that's fair and that sure does make a difference rather well except it was terminated the license agreement was terminated but if it's under a none of the provisions as i understand them all those rights whatever the license agreement is about a part terminations all those rights go back and naturally to correct i mean just in a regular i would say in a regular scenario that would be true when they cite the elvis case they cite the  first case in particular in a burger king case those are what i would call true franchise cases right the difference in this case from all those other cases and what makes this case really unique i think is that there was a purchase here you know that the com carrollton location we bought this court and said so that is no longer in dispute we bought it and no other franchise case that i'm aware of including the one side and all these briefs that anybody ever own anything including  your theory you didn't actually need it i think it was a fair interview ok how do you square that with the recitals the license agreement which you will obviously agreed to specifically says that they own the intellectual property  you know the trademark infringement issues she ruled in our favor on this became a breach of contract case to her and whether or not our continued use of the marks breached the license agreement which she found that they did there was a trial an actual trial not just a summary judgment proceeding but actual trial in that manner she she allowed them to put on evidence of whatever their contract damages were which they were unable to do but her interpretation of this is that they still had rights in the marks by virtue of the contract the way i square this and in my mind your honor and i think we all have to recognize this is a very unique situation because of the bill of sale it is but i don't find them necessarily actual trade dress and we can talk about that there's no no doubt and from a contract basis at that time there were rights that they owned fast forward i mean that was two thousand and seven fast forward a dozen years the issue in trademark law is not do i have a registration and that gives me ownership it's use that use and i think that's what troubled judgment laws oh in ruling against them on the ownership of the trademark issues because they haven't done anything to but those rights essentially evaporated by the time of termination i would agree with judge my lawyers approach that from a from a contractual perspective they had rights too they had rights at the time but i think from a trademark respect not a contract perspective but from a trademark perspective she was concerned and i agree with her on this she was concerned with the lack of use of the market you you might have the biggest prettiest marks of mcdonald's shuts down tomorrow they will lose the rights  you are using it and don't file the affidavit to continue using their section eight nine they will abandon your market for you you have required to pay to use these things and prove use in order to get there so to me this comes down this case is is interesting i will give you that but i don't think it's complicated that i think it's very simple and it's a question of proof in the record what have they done to prove that they have an actual trade dress there's nothing in the re would automatically assume that it's part of the community restaurant or that it acquired secondary meaning which is in the customer's minds they they are in top of it these are both issues of fact and the the  evidence in the record to prove that to prove that it was inherently distinctive they've done nothing the only thing they have in the record are inadmissible screenshots from yelp or google or whatever it is and a deposition excerpt from ah client which says that yeah i bought what the saying why would i change what i bought that's it that's that's not evidence that's going to get them past a summary judgment same thing for secondary meaning secondary meaning is something that they are going to have to let me s have other cases done respect to restaurants and inherently distinctive trade dresses miller's ale house seven o two fed third one three one to eleventh circuit case play five case claim to trade dress in the name of the red letters on the building a name on the menu dressing staff and khakis and polo shirts a center bar with a soffit high top tables and wood paneling on the walls court said nope that's not inherently distinctive that looks like every other sports sports bar in the world a lot of those elements are set in there they're claiming and newspapers on the table court said that it's not inherently what is inherently distinctive about stools or counters or mickey mouse clock if you if we follow along with what these cases say and it seems logical to do so there's nothing in there to show that they're inherently distinctive but more importantly where's the proof where's the evidence but they can't show that and they have to show secondary meaning which means that a substantial number of the relevant buyer group considers or  e associates the trade dress with the can be rolled around there's no evidence how do you do that amount of sales no evidence of that advertising no evidence of that consumer survey evidence no evidence of that direct consumer testimony not even any evidence  that there's nothing all they have is my client's and yeah bought it why would i change it that's it and some inadmissible screen shots they fail across the board they also have to show that the elements aren't functional what we have here stropping it doesn't define a single thing under basic contract law there's not enough there to prove their case i want to talk about damages real quick because damages are important here judgement the question in my mind is let's assume things go south for me here what does that accomplish this is not a jury trial the jury is never going to see this case no jury was ever played in this trial judge is the trier of fact she has already looked at all of these issues including damages she has looked at the pebble beach factors all six of them and she addressed all six of them in her brief not just two she addressed all six of them and found that there is considering those six pebble beach factors there's nothing in this record there is no evidence in this record to show that they are entitled to damages again damages in a trademark case even if infringement is proven even if infringement is proven which was not in this case you were there not a right you're not automatically entitled to damages you are entitled to damages if you can show to the court with evidence that you meet the pebble beach factors and that that's that is your burden there was no such effort in this case they they never put forth the evidence to show evidence to show that we we would somehow be required to dischord profits or anything at sort your honor i want to finish very briefly there was a pay from all tina case which he cited and it struck me in this case it says this is judge johnson in the you first use is addressed to the question judge home raised about why the license afterwards and what's really interesting is if they got everything out of the bill of sale the bill of sale was ten thousand dollars it was boo translator if there's no evidence of confusion and what about damages the very simple your honor what happened was on the evidence of confusion there was evidence that was admitted consul says that the attaches exhibits to the motion for summary judgment also attached to it as an exhibit to the motion for summary judgment was an affidavit of a private investigator who visited the chargers location this is it of the uptown location on numerous occasions and documented the presley confusion is satisfied with hers in a non competition case confusion is satisfied by affiliation and that's exactly what happened just a lot of herself said and this is on page thirty eight twenty four in the record she's talking about the charter street location but when one walks in and i haven't been in there i don't know i've got photographs here it looks like community grill it smells like a million grill the and interestingly judge in los also found regarding the question is did we describe our trade dress our trade dress was set forth in the license agreement said all trade just of a social committee grilled it was amplified in our second amending a supplemental petition which is complete paragraph describing the elements of the trade dress judging loud so found that based upon that she stated that the discovery responses were sufficient to put the code parties on notice of the elements of the putative trade dress that's in the record at thirty two twenty two that alone should have stopped the motion for summary judgment to deny their most for summary judgment they were put on notice of the elements of the trade dress so how can they say they don't know what it is if they're put on notice of the court found that yet she granted their summary judgment is totally inconsistent totally inconsistent the as for as going back to the life and question i originally started with so you have the license two weeks later to pay ten million dollars and then after that they sublet i sense destine charters and uptown uptown the entity that owns the trademarks why would they do that why would they do that if the town had the right to use us anywhere else again in their pleadings they've never asked to be able to use these trademarks that they bought by the bill of sale anywhere else other than at six twenty six south carrollton avenue you can't go beyond their pleadings and what they relief they've asked for it's not logical to say ok for ten thousand dollars i bought these trademarks i'm going to use and throughout the entire united states lose or use a theory that doesn't fly approved sub licenses three sub licenses so it continued to do that said committee grill holdings inc continue to receive income and policing the license that's use of those trademarks i was registered there was no loss in order to prove abandonment you must show requisite intent to abandon clearly that's not the case here so the user lose it there is out the window that just doesn't make a bit of sense of finally i want to suggest to the cour that as far as damages go hey you've had eight years since june first two thousand and eleven the license was terminated effective june first two thousand and eleven they continue to use these concluded the arguments for the day and for the cases are under submission thank