trademark used in this case which occurred after of the alleged infringement began the district judge's ruling is in error she refused to allow that as evidence of likelihood of confusion in the case in doing so she violated the federal law ungeared sees that a trademark registry has for trademark priority in for constructive use under the i don't trademark law as in a madrid protocol registration trademark owner files the registration based on international registration that exists the benefit of that is that the trademark owner then gets a priority date in the us the date where the international registration so in this case that was a right priority date of two thousand not then to federal registration issues and under the statutory framework the trademark owner then gets additional time to develop products market products and start using them are in the united states under the statute so so with a reasonable amount of time i mean they can't wait until like the even five years before they start using the mark under madrid is  that your position so under the statutory framework you have to file a notice of use between the th year and six year after registration that's when you're required to file a notice that you could to maintain an infringement action can you just do you know rely on the filing have no actual use and then if somebody starts using you run in with a product can claim infringement can you do that under yours neary i believe the answer is yes because the a registration or an effective registration coming from the madrid protocol and the mark holder has no use at all somebody comes in with something in the market that they think is an infringing product and then they run out with a competing product using the market they've registered and now claim infringement does that work under your theory is there a problem of that know that that works that's the statutory framework and that that's shows the benefit the powers who could sue for yes your honor because that's the concept of statutory constructive use that's the theory is that it gives the owner time to develop a product and then once there's you have to have use before you can sue for infringement but once you have  you get the benefit of the constructed use and the trademark hurdy provisions in the market doesn't count as a bona fide use if it if in my hypothetical it's just in response to somebody else's using  the fact that someone else allegedly infringed before you were you before you were able to use your heart is irrelevant to the analysis because what matters is when you have use because once you have the actual use then would you have to make a declaration that you're actually going to have bonafide use and then if you're not using it for years and then all of a sudden you just show up when somebody starts using at it starts to look like a bit of a troll well so th there is a limit obviously there are limitations to that so the way the stats you just said you have to file your statement of use within five or six between the th and six years in addition there's the idea of abandonment and trademark law which is if you don't use your mark for three years there is a presumption of abandonment that has to be overcome so that you have to make a declaration of of the bona fide intention to use the mark right at the outset right correct the instan it wasn't a lot of use but it was sufficient to establish the trademark use but it was also used in connection with rum products before the infringement began on a global run products and the untamed mark was used in in the very large font in connection with the golden run products then after because he started using ricardian scalable is one the untamed revolutionary run came out but when that product came out that clearly is use that's not being contested b y the district court and when the use happens you automatically get your statutory priority in constructive use do you concede that the introduction of that product was motivated by by picardy and as a response to well it was motivated to enforce the trademark rights that's the whole the whole statute is set up to encourage you to take this was you can see i'm just asking a factual question you can see that there was no plan  introduced that product with that name and the use of the mark and until after book already had started with its its use of what you considered infringing mark i think in large part by a car days of the mark or something like the mark but what was the is there anything the record about what the plan was for spec and this product we know it was shipped in fairly small number was there any record that there were there was production going on in a plan to ship marvin or anything like that and you're referring to the  suppose we didn't think so what it was just a record show about what what was the plan anything well the the motivation behind all the statute requires is that you use the mark right in in friendship began it started in the mine at the miami run renaissance festival in two thousand and thirteen when lodestar had its golden rum and in connection with that it was the large untamed mark was in connection with that  there is evidence to show that untamed was going was being used prominently on golden run products being shipped to the united states and again you're on to the business purpose of the company is to develop a market in and to license it to a larger company and so the plan wasn't to start competing on the book harvey level at the same level that they so good that that's not low service business i have their business plan is to develop brand for a niche market and then a license that school larger company so the intent was never to sell hundreds of thousands of product it was to establish a brand which had lots of value and then it's time to license that's who are as a company that is their business model and that's exactly what they a certain company that has the resources to do a mass marketing of mass manufacturing it can be very valuable to that particular company and the example i would give is mr levy that the owner of loads developed a similar company are a similar brand it's for route sixty six for cigarettes it had very modest sales not big sales at all but he was able because it was a good idea it was a great brand idea he was able to sell that a license that school larger tobacco company then use that idea and invent mass marketing of it in mass production and mr levy was able to at the outset earn fourteen million dollars in an ongoing royalty despite the fact that he himself didn't have the vast distribution network that but his business model is to develop a unique and interesting brand that then can be utilized by a larger company and perhaps with their distribution network they can you know make more money than a  reverse confusion cases is it's there to prevent under compensation and it's to ensure that the infringer and not the victim bears the burden of the uncertainty so the general standard for reason royalty is is there a sufficiently reliable really internally develop his own ad campaigns in the in many instances the purchase or license them from other instances that happens at the yard you know that happens at a party so that is other evidence why it is reasonable to assume that in this particular case a large alcohol company like mccarty would if they came up with an idea and table or untamed that they would pay and in fact they did pay another company did help in this case so that is so therefore it's think the court's decision below was that the proper comparison was what was in the marketplace at the time of the alleged inference and that's that's how you measure things that is so the court live in look at the use that was in pla marketplace in very different uses a different product it's you know on the back end it's not all that prominent but the mark was being used and so that would normally give them rights and if they see someone else coming in doing something else why can't they then expand into that and say you know no dice i get to do that in this area with my mark i'm using so the we're not seeing that here you know we're seeing those the measurement for for confused the st infringement is confusion when you disagree that it would have been confusing anyway but what ultimately the proper measure in is how it was used previously in the fact that they then changed their views so dramatically that the part completely from their prior use is to an entirely you'll have a case in the non madrid context that stands for the proposition you just said that you can't change the use and create the infringement and what's your best case for that the year of you don't we we don't we haven't had the two different strictly important  a reasonable loyalty you need obviously willing parties and there's a will there's a standard set up that they fail to achieve there's no evidence of any prior life and civilizations with other rd parties at the court the low there's no evidence of what will  could say mark on the same products and there's nothing that could either party could you do stuff that would lead to consumer confusion two parties using the same arc of the same product and neither side can stop the other that's certainly not the result that congress had for the land back so i'd also have to address the issue on whether or not there is a case on this issue i mean the statute is clear there is constructive use the idea of constructive use is that once you ha actual use it's legally deemed to have taken place at the time of the priority so the fact that there might not be a case of this doesn't mean that it's not be considered it's explicitly dealt with in the statute and there are look i own the rights for untamed untamed for run i'm going to develop that product in the future infringers be aware if you want to develop another product like that before i come up with mine you can do it but you run the risk if the agreed because if if the standard was the defendant would have to agree they could always say well we never would agree to that and that basically eliminates the damages theory the other thing they are well trained here