good morning your honor is may it please the court my name is brian wosm on behalf of the poet leaders incorporated and i've requested three minutes for a bottle thank you for your orders this is a trade dress case the trade dress at issue consists of three elements first smooth wavelike scallops over the surface of the cylindrical surface of a rifle scope in uniform the peaks and valleys up and down second element is those scallops extending straight back parallel along the length of the rifle scope the third element is that each of those each of those designs are uniform on each adjustment surface in other words district court records conclusion that that combination of elements was inherently functional so much so and so obviously so that the court was would need not trouble itself to examine the evidence that presented to the contrary  the question of functionality your honour's is relatively straightforward compared to some of the legal issues that we consider but it is not nearly so simplistic as what the district court reduced it to and because the district court reduced it to simplistically the district court erred in that decision should be reversed in the question allowed to proceed to the jury now both sides agree on what the governing law is we quibble about vocabulary but there's no question as to what law governs here we start with in would the supreme court decision which says that a trade dress is functional if it is essential to the use or purpose of the article and to the contrary it is not functional if it is merely ornamental or arbitrary we would submit that our design is an arbitrary one because it was chosen for purely aesthetic reasons their number is almost infinite not meant that literally in front but quite a number of combinations  or designs that one could have put or no design on the adjustment surfaces we chose this particular one fair to say that the district court here boiled it down so simply that because one has to put one's hand on the adjustable adjustable parts of the scope that they are utilitarian that's exactly what the judge did yes your honor and the that that makes the wrong comparison the comparison that the district court looked at was grip versus no grip that's not the question here in fact we don't even use obviously the word grip we use design because even even a surface  that is flat can be gripped we put chose this design this particular scalloping design for aesthetic reasons and it can be gripped a function can be applied to it but that function is inherent to the adjustment think that if there is an contradicted evidence in the record that the designers chose it for purely aesthetic reasons which is exactly our record here that that is sufficient evidence to proceed to the jury will will prevail as a matter of law in the face of contrary evidence not in every case but i think that it's sufficient and i think that your honor that that is consistent with what you argued in your dissenting opinion in the groan of my point that was that was a dissent correct correct but i don't i think that this case the facts of this case your honor presenting a helpful fact pattern to perhaps correct some of the excesses of the growth of opinion that say that under these facts where we have an contradicted evans and in fact the testimony in question do you lose if it's not a no no no i don't think so at all because there's there's for one for one thing there's no objective evidence to the contrary we also have in this record which we didn't have in groeneveld we have rulings from the u s p t o we have rulings from the california secretary of state that says these are registerable trade dresses the the  examiner in the u s p t o looked at this twice and considered all the evidence that leaders presented considered our express argument that this is not a functional design and ruled in our favor on that issue that that have explained in our brief that is it necessary conclusive you're not you're not required to defer to that but that is evidence of the date you want to hear but there's more to that finding than that it was chosen been i've been in this industry for thirty years i've deployed into combat with these designs and if it had been chosen for functional purposes it would have looked differently there's more than just the testimony of the designer and even here you honor even if we look groeneveld versus this case of that at the testimony of the designer the criticism of the grant of a majority was that the designer had merely mouthed the words oh no this is not functional because because look at all the other things i could have chosen these these designers did more than that david doing the person for leaders who designed the said look i chose this for static reasons i was trying to make it look i never even thought of functional considerations these didn't influence my decisions which is the test of the growth of a majority or to kill a good and i have an element here for example the third element of our trade dress is that each of the designs each of the adjustment services has the same design if you look at all the competitive products listed in photographed in the callus report you see that most of them have different designs on different adjustment services there is no possible functional motivation to put the same design on every surface but to create the aesthetic appearance of uniformity well what about there's another step which is you know is it significantly more economical is that a sides have focused on the essential to the user purpose and we've stopped the conclusion but i think it went far enough to realize that this is this is a messy fact specific complicated series of the factors that this court has said before isn't subject isn't subject to summary judgment in the normal case most just obvious and overwhelmingly so but here there is sufficient evidence in the court only looked at two factors it's hard to even reverse a consideration that only considers two out of the seven factors but there is evidence that the court did look at for example the testimony of the distributors and tests and evidence that the court faulted us for not having which is actually in the record in such as testimony directly from consumers we have the chad rouse declaration in the record who is a end user who testified that i see this pattern as having secondary meaning as indicating leaper is the source to me and he goes on to say he was actually confused because he purchased defended  product so that that is strong testimony that weighs in our factor that makes the court's decision below not to rule on the secondary meaning even stronger the i will grant you that are sir i doubt if this is in the record counsel and i'm just curious is leaper considered in the gun world a high end products so that i would be when i'm shopping i would be pleased to see while that's a leap years it has that wonderful design is it i mean is it in the record i have no idea why don't you know what i believe there is sufficient record evidence in the cheaper we have some tips for that that i won't repeat here but it's not it's not the highest and brands like leopold for example or the higher end but i would i would be proud to have a lever scope but i'm  biased the the sales evidence the the advertising evidence your honor the for example defendants fault us for not calling out the design in our advertisements as trade dress and yet we have full page ads with a picture of the product and of course the most prominent feature x turn only on that product is this design so we're putting this design out in the markets face as representing our product if i could swing back to the functionality or get your own unless you have another question and secondary meaning i would point out that if the district court is right the u s p t o has to be wrong and that goes back to the point the observations we made about the coca cola bottle and their decision in the us p t o decision to register the night force design it was the night force that's the name of the other defendants in their briefing have admitted that yes that is a distinctive design that has secondary meaning it's not functional that ought to have been registered they don't challenge that decision but that leaves you in an odd position because if that if the u right in that registration which everybody seems to agree the district court has to be wrong because the night force design is just another type of scouting that's just another type of if you want to use the word this is not my word but defendant's word is grip it district court words grip it's another design on an adjustment surface and if it can have secondary mean ours at least has the possibility of having secondary meaning it ought to go to the fact finder to determine if secondary meaning in the district court must be wrong that the fact that it's on an adjustment surface disqualifies it from having non functionality and secondary  morning may please the court my name is joe cleveland i'm a lawyer from texas and represent texas defended synoptics usa in my time here today i would like to address hope to address two issues of why the pla in aspect of the device leaper scallop shaped knurling on the adjustment knobs of its scope is not merely an ornamental incidental are arbitrary portion of the device it's the reason the product works the knurling allows somebody to grip the surface of the knob without using tools to make persuasion adjustments whether it's in the rain condition or a cold condition while the per user is wearing gloves or whether the adjustment knob and the in the glove hand are wet knob it's we have testimony from our expert mr kapil sibal who tested the knob a slick knob in inclement weather and was unable to turn the knob with with a with a glove hand so that the knurling is essential to be  does it have to be scallop to be in to a disease that's apparently your word or who came up with that word scalloping or narrowing knurling i guess that's the one that seems to be in the pleading siren  better if they were equipped with adjustments to the scopes that's correct so every every knob has to have a gripping service but the question is whether this is an but not necessarily functional well there is i think you can you have to have you it would have to have both in some instances because for example the night for scope the the scope that was mentioned earlier has this error photographs about and yes yes  honor in our brief there's a photograph of that which has a unique fish scale type design and so if the plaintiffs had come up with an interlocking horn design on this neural park there would be an arbitrary ornamental feature to the design but they've chosen a design that's very common in the industry a very common design this use in a number of the scopes that are offered in the in the in this in this sphere product so there are other you're factures like you like your company that have adopted this scalloping design there's two companies that adopted the scalloping design before leap years did bushnell has in this is in the record also bushnell adopted this identical design in two thousand and three and tasks adopted almost a virtually identical design in two thousand and four i believe so this design is a common design used by major companies like tesco and bushnell that were long before entered the market so to suggest this is some unique ornamental design is really not supported by the record at all the evidence was not did bush kno but not the shape or the knurling design or anything like that it's identical there's no infringing by leap years even though bush now was was first shiny but first in the scallop ornamental about it because people were using it before and it was a common the point of the make it not ornamental well it has to be the one of mentality functionality are we not yes but that's part of the test of the functionality it's whether or not it's want to meddle in arbitrary and so i think you have to look at then szell to use or purpose or effects cost or quality we know that's the way by which we judge it direct and then that the other the other opposite view of that test is whether it's merely an ornamental incidental arbitrary aspect of the device and so those are the those are the things that you're looking at is the court is to say ok is this useful to the purpose or use of the product and whether it's ornamental or arbitrary and district court said that's a that's an adjustment sec part of the gun so it's utilitarian it's function it's functional it was seemed to me when i read it that it was that simplistic that it wasn't really an evaluation that there were others in industry who used it did i miss that part though europe but this court is sitting to know they're sitting as with giving no difference to what that judge did or said and so you do you get to  cide here on your own on their own on this on the papers or before you in adobo situation about what what you determine to be functional or not functional and give no difference to what the district court said well as judge clay pointed prove the design acquired secondary meaning in other words the evidence both prove that the in the minds of the public the primary of significance of the product features that to identify the source of the product and not the product itself leaper as evidence however did not come close to meeting this has held that one or two of customer affidavits and distributors as they is insufficient to create a trouble issue i think what this court really focuses on are secondary meaning surveys in both parties conducted secondary meaning surveys in this case and if i may  five to describe for you what those how those surveys were conducted and what the results of those surveys were the defendants identified the relevant universe is purchasers or potential purchasers of  size was four hundred twelve respondents that universe one hundred ninety four of those respondents indicated that they were somewhat likely or unlikely to purchase a rifle scope in the future in two hundred eighteen respondents indicated they purchased or considered purchasing a rifle scope in the last ten years this is both both parties conducted what are called online surveys and so they showed a picture in the defense survey the defendant showed a picture of a but obliterated a mask the logo so all it showed was the actual scope and the shape of the scope and the respondents were then asked the critical question a second remaining survey was this scope put out by one company more than one company or don't you know twelve point nine percent of the respondents answered that it was put up by one company and this court has held that greater than fifty percent is some indication of secondary meaning thirty eight percent is marginal and twelve in twenty six percent falls short of any sufficient probative evidence the leaders also points to their surveys they've conducted three surveys but they only point to today even our district court here who said he found some value to the secondary meaning to discuss their evidence if i may your honor to describe why he may have gotten off on that in a little bit confused but the survey number one leaper survey expert found that when bill presented with a leaper scope nine percent of the respondents answered yes to the question do you know who puts out the scope which is again well below the court's threshold and they in the respondents identified forty different brands of scopes then the third survey survey number of three which is where the plaintiffs are putting all the all their weight on is the respondents were shown a photographic a  identical leaper scopes three identical scopes and were asked the question do you think the scopes above are made or put out by the same company or different companies and there's a problem with the test at the outset because there's a perception bias because the participants were thrown three identical scopes bleepers and the it's likely inflated the the number of same company responses but nevertheless sixty one percent of the respondents in that survey which is above the fifty five percent threshold that this court indicated responded that was the same company but you have to go to the next question which is a very critical question that surveys the that was asked what are the reasons you think these scopes are put out by the some same company and only eighteen point five percent mention anything about the adjustment parts and only nine respondents not listen one one percent or one point one percent of the respondents identified the knurling ridges grooves or textures of these parts so both parties surveys showed that the risk the public which this case is really all about of what the public believes are perceives the scopes to be from a single source did not your honor the son optic scope use its exact same design is the bushnell scope and they exactly designed as the leap this registration permitted in in light of your view that everything is all you know  design doesn't have cut so that there if you look at the bushnell scope and we have expert testimony this undisputed expert testimony on this at the bushnell scope and the leaper scope are identical in shape identical i mean the knob the knob the adjustable parts are identical in shape with vertical cuts yes and so to get to it i'd like to answer that your honor because you're asking put their logo on it as did the other defendants and there's a case that says word party conspicuously conspicuously uses its own trademarks it would be error to infer secondary meaning based on intentional popping alone so that factor is one of seven factors but all the defendants display their respective trademarks on the product prominently in comply with that completely negates the finance claim that intentional copying is sufficient  absolutely that if that issue has not been litigated at the summary judgment stage enough to where the district court even felt it necessary to rule on that issue and it certainly has no bearing on functionality one even if they are the same design they they are either both functional or not functional and that the evidence suggests of the we have created issue of fact that they are in fact not functional we've also answered the quote the point by by observing that the bush in one of the briefs has nothing to do with functionality and is only one of many factual points to consider and secondary meaning your honor if you would for a moment yes yes registration work so the says that you did it keep registration brief says we achieve allowance which is the step before registration the examiner reviewed our application initially denied it when we argue apple allow believers application to proceed to registration right it allowed it to move to that step what comes next and we explain this in reply brief as well but it is a very arcane procedure once it's allowed there's a thirty day period in which third parties can come in and file on an opposition examiner is concerned it may be registered but they they have gummed up that process a little bit in judge cook to answer your question early and that is not our word that is a word that defendants per pulled out of the dictionary to describe our design that we call