submitted one advertisement from a publication called speed news that speeding if that is data that's relation ninety seven that speed news ad is literally about thirty five millimeters in height at the base with fifteen of the he reviewed the government published list of vendors and he regularly reviewed the federal aviation administration repair station played to testify that having regularly reviewed all of those publications point decoration so this was after the summary judgment motion and wrong he put in this proclamation that's pressure and this was after he had given the interview tory answer which said what did you do to police and so forth and he said nothing that's preference so doesn't this fall under the sham exception where you can't once you're poised it on your own part of your own in iraq a tory answer under oath and now you see th why i could have been missing for four  we have no quarrel with the sham declaration role if we had no explanation as to why it was misinterpreted it it should apply  defendant introduced the defendant essentially introduced one page one letter that point to sent to a customer in around the year two thousand saying point of his quote in the aircraft  number of services in the vast majority of the services on that page have no direct relation to turbine engines the vast majority of those services relates to either aircraft components of aircraft i just want to make sure i'm sort of the point that say that last sentence again about page two hundred five just majority of the services listed on page two hundred five have did not pertain to direct work on turbine engines the best majority pertain has no evidence that it could use to convince a jury that there requires it and magination or mental leap to connect or turbine inc with all of the goods and services the points of provides we submit that maybe e actual competition but the the sleep crack case holds holds that it least relevant to the likelihood of consumer confusion analysis definite expansion plans by the plaintiff is highly relevant to that an military aircraft but also commercial aircraft including boeing seven thirty seven s that's in our declaration of independence that that testimony is an irrelevant because the point if works on military aircraft not commercial aircraft defend it works on commercial goods and services with its mark this court in their star cited a very good example of a suggested mark roach motel the product is not literally a lodging for travelling roaches it's a place where as we know roaches check and they don't check out the same insect trap what's a descriptive mark and mark is descriptive if it describes a primary characteristic or a function of an article or service that the market may not just pride every salads we have clam chowder on thursday and is a video arcade in the back where kids can play video games while they wait for their food therefore because we offer these additional goods and services that have nothing to do with hamburgers are marcia b suggested that's not the way that it works to provide the highest quality of standard of turbine engine and accessory services available for u s and international customers i also would like to very briefly refer to some testimony which we cited in our brief and which was the subject of the court's request for but i think it's important to note how we got there and we got there it is deposition question what's your understanding as to why the mark arrow turban was chosen for the company answer we just go through how it originated question yes this company was short lived to the untimely death of this father and when they decided to restart the company the question posed to his brother was did we want to call it california eric turban again so although this testimony was not directly reflecting letter in may of two thousand or so that would be that would be two years to your period correct and then and then you want to tack on that an additional ten month period we believe that's appropriate because of what conviction that he believed the defendant was your own genius martin but you have to admit don't you that at that point your side of the fence and who you were on notice that the cease and desist letter had come and so were you to try to resolve the matter it's true we didn't have a signed release from mr clayton or did you ever send a letter saying we haven't heard from you and start all months we assume the matter is dead you know we assume that but we did not send a letter to that effect  you would agree with you there would be after you had that conversation even assuming you can reasonably rely there would have to be a decent interval of time before you could begin to take comfort in the fact that you would heard nothing back i would agree  is that you that's a classic fact issue about reasonableness reliance and so forth but on the other hand that's only one of the six factors but  the way the disparate judge approached this was to assume from day one there was no way and i assume from day one not the same not even to credit the six month period that you're willing  view of all right how in order for the plaintiff to have been reasonable when should they in the exercise of due diligence have discovered your client's activities and use then as a given then we have to measure the amount of the harm from that six month point forward maybe subtracting out the period of time you had these discussions and these and of all former alaska senator and but none of that can offer another product with a different name but still under the mcdonald's banner and everyone will know the source where this product comes from this is akin to asking mcdonald's to stop using mcdonald's our entire goodwill our entire business has been invested in this name i believe it's the only market we're on we are now known for example as the leading the aftermarket engine provider in the world these are things that have happened as a result of this investment we think that this death and definitely meets our standard for prejudice and nonetheless conclude that if the district judge had understand and had understood the facts as we now see them it would not have been an abuse of discretion for the district judge to grant summary judgment is that enough the reason i asked that question is trouble i'm not sure it is enough because at that point the district judge on these new facts might or might not have decided in the way he did were not being asked for them to decide video of used discretion  but notwithstanding that it still applies the standard of review for abuse of discretion with respect to the latches the application of latches to those facts and i'm assuming those facts are the facts as  discretion in determining whether to apply latches or not and so based on that i think whether to apply latches can definitely be a district court decision there are there are cases where a jury i'm sure could exactly on point that it is negligible dr and therefore it's something that's in the hands of the district court judge while this court would review whether that doctrine was applied correctly or within a certain standard of review again if i the answer is it would be in the jury's hands there's a case i don't have the name but i have sight it's two sixty three thirty nine forty two nine sixty two months circuit two thousand and one that case that case held consumer confusion you've got strength of the trademarks involved it's that or i see so it's not that it is necessarily a jury question but it's a it's a if there is one genuine issue of material fact in dispute this case must be reversed and remanded there's no you can't say well it's it's a minor material fact therefore a reversal is inappropriate it doesn't work that way for example if if the court finds that our version of the fact is possible if our version of the facts is possible that we should have discovered the defendant no sooner than we actually discovered the defendant which is march two thousand and there's actually no delay and maybe there's two months of delay between discovery and cease and desist letter well that's enough to send that entire just to spend the entire case to do a jury on elect discrete judge to apply just hypothetically let's say they're ten factors to apply here they're six and let's say the district judges absolutely sound on every single factor but there's one where there was factor number ten therefore that's enough to go back and do it all over again but let me finish and what if we look looking at this we say it's absolutely clear that the district judge is going to reach the same others the one in the example i stated just a minute ago where if under our version of the facts there was no delay whatsoever i would argue that's a material fact probably number six under our version of the facts point that was not harmed at all because the case must be reversed for ready and agreed upon paragraph four of both not qualify strewed as requiring