provided a search engine service excessive old shoe and enjoyed by consumers around the world as evidenced by multiple declarations from those users he submitted when he is or typed dash google yet the district court found that mr underwood had no trademark drives because as a matter of law this world wide use did not constitute use this court said what matters is the use of the mark with an intent to adopt and there's no test of how extensive the use is or how significant the duration the district court said it's different here because mr underwood provided services for free just as for example facebook or twitter did when they say when they see when they start that's a staggering conclusion under opinion in your argument go go daddy was the host who are for the website ever everything that you claim was incomers rammed through go to well there were a number of uses prior to its ten to twenty america registered it from our it just looks like i mean that i would be a will be easily determined issue why is that still a conflict fracture think that somebody could look at that and really answer that question i think you know that's a question for the jury but i agree as a facile matter it's very easy we submitted declarations from multiple users who used the platform in two thousand and fifteen we submitted service agreement in one post or what i'm just mystified how you can both disagree about something that is so subjective and determinable i don't know how they disagree they're citing records from go daddy but  web and for multiple reasons found that the website was up and running and again we have decorations from multiple users i agree it's easily determinable but it's certainly not easily determinable in their f the marks so he is so once the website was up and running he was providing a search engine service and a personal assistant service search engine service there was a search bar as i said at the beginning if you type and something into that search bar like batman and you received information about batman under a tab that was labeled batman dash erica same says that erica is a search engine service search engine and what else did you say well a personal assistant in that it was it was doing more than that so erica also provided recommendations about movies  entertainment options so it wasn't just that you could type in information then it a search and get it yourself eric was also doing other things like providing for writing recommendations to alright so given that those are the services how did you show that a substantial portion of the public associated the marks with those services so we think that that is not a that did that where did the district court discuss actual use and really not summary judge so the district court simply said that when there are no sales and they have not yet been savile's the test is and now i court or bank of america sites i'm faxed remotely like the publicly accessible site worldwide and services provided that sounds that was insufficient to trademark rights you examination procedures which is the procedure for registration under the lab act and sets forth what's required to show use and all of them say that when a site is excessive well to the public and includes to use the district court did aggress actual use but said because there's not a showing of profit commercial activity i'm not going to use it but he did consider the you never use the word actual use you argued a valid use use what were were we look at the pleadings were we going to find a generic reference to actual use as distinct from  use so we use the term trademark use which is actual use the defendant says we didn't know really because trademark use could include no it is you i mean so that well we mean where we said if we said it was use in commerce of my time for thank you counsel mr burns thank thank you judge mathis and i'm david bernstein for bank of america read please the court there are three reasons why no reasonable jury could conclude that plaintiff's on any trademark rights america and i hope to be able to touch on them all three today very briefly the st is that the georgia registration which mr goldman has not even tried to defend is unquestionably invalid the nd is that the sporadic limited sharing of mr underwood's idea for a personal assistant avatar cannot meet the standard for analysis use and then the rd reason is the one that the panel has been speaking with mr boatman about which is that the movie database website that mr underwood has doesn't create any trademark rights america alice claim that and in some detail let me start very briefly with the st appeal i think it doesn't need much time jeff nor not can i interrupt you very quickly i just want to clarify a procedural issue i noticed that you had six counterclaims and of course you got the partial summary judgment on the st counter claim and then leave one for summary judgment on the plaintiff's claims and you got summary judgment but what happened to your address those kind of claims but counter claims of not infringement very example are effectively moot if the plaintiff has no trademark rights if the final trademark rights there is there's no question about infant yeah i understand it i just wondered if we might need something to clean that the supreme court senate looking back com is that a domain name is an address it's like a phone number it's like your physical address it just tells you where to go now a phone number can become a trademark one thousand eight hundred dollars mattress we all know rights the supreme court told us in booking dot com that you have to show secondary meaning that the public sees that and associates it with a company they don't associate just as an address but actually they associated and that evidence in the booking dot com case which is discussed in justice ginsburg session is exactly what is missing here there was evidence that booking dot com france their web site with the booking dot com trademark that when they did a survey of consumers more than seventy five percent of consumers knew that booking back was a company offering their services here let me be the association by the public with your product is a requirement generally not actually what you are saying that the supreme court of booking back said that even under an actual use claim if the use is in your trade name you still have to show a public association to a certain level i don't know what level of separation of require but some public level of association of your product so i think there's two different past that are actually st if you have a name like when you have a name you know also a craft was a person's name chrysler was a person's name those don't become trademarks just when you use them in commerce in a person's name only becomes a trademark when you show the people associated not with just a person not just with your name but with goods or services being sold craft of course but today it's it's secondary meaning actually has become its primary meaning of a brand if i had if i had my own website and i said here are david's movie picks that would give me trademark rights in the term david that would just show to people i'm communicating meet david these i'm i'm willing to move effects and what i'd encourage the panel to look at is the actual use that mr goldman talked about on the website because this movie database website st of all let's be clear about what it is mr edward went out and purchased the right to take someone else's movie database and put it on his website so this is a rd party's movie database that he's just brought up on the internet and he's added his name erica's movie pace to it but all that tells you is somebody named erica saying hey here  movie i think one of the key reasons and that there's no trademark rights is that there's no association between the services you know dr mattson you said one of the services information about movies there's no  connection that when you if you look at the if you look at the complaint your honor and let me just get that right up here you'll see that in the complaint at pages thirty and thirty one of the appendix and to avoid confusion i'll refer to appendix page numbers only in the nd case you'll see images of his website that he's claiming trademark rights he's that the my twenty four erica dot com domain name but again domain names aren't trademarks until there's some association between the trademark and the services so a domain name itself gives you no trademark rights then he's got a picture of this so called avatar there's a lot of discussion in the record about how this isn't an animation that's nonsense this is just a quick tune and he had a power point slide which he showed in court where the avatar has a little bubble that comes out of her mouth and words type in it and it spins around on the screen google as mr goldman just described when you go to this little web site it is prominently branded google right there and then you've got the search engine there is no branding of erica there you wouldn't know that you are at a in your domain name even if you are asserting an actual mark claim rather than analogise if that best to have secondary meaning how broad is your evidence have to be of a secondary meaning could eight or ten people who said yes i used to say that i associated in a secondary weight is that enough or do you need some expert to say we've looked at the market and there's ten thousand and believe this was the test for read on that so there  there are two factors for secondary meaning your honor and course look at the extensive sales of the extensive advertising a brand awareness studies generally if you do a survey you're looking for thirty five percent or more of the jack of the public the relevant public assessing the market to create secondary meaning and i think you know that goes to one of the questions that that is key here is and that is well what does it mean that you just threw a website up on the internet it cannot be the last that by cath characterized and what they say and and these declarations are in the record at appendix one thousand and ninety two to about eleven o two and they say things like i visited my twenty for arafat com but they don't say what i saw on it that's vast majority of these declarations have absolutely no distinction description of all i'm saying this is actually what i saw you could have gone through it there's no doubt that mr underwood registers a domain name my twenty sat com you know back in the early twenty s well period i'm forgetting the exact date but until you until you host content as the website there's nothing there so it certainly is possible that these people in two thousand and fifteen or two thousand and sixteen went to my twenty four dollars areas that come and there was nothing there and what they don't tell you in those declarations is i saw movie database and and i saw it was branded with the erika trademark that is missing in the speculation and i think there you know i really i think if you actually parse them carefully you'll see that they just don't support the notion now mr goldman cited the trademark trademark rights and the reason is this the trademark office says there was no linkage in the use of the cardio group's name on the web site to the services they were provided and we would submit is the same here there is no linkage to the movie database that mr underwood has gotten from someone else to the error of grants it's not enough as as mr goldman says to have been in the bottom of the page a statement that says erika is my trademark you don't get a trademark right by asserting this is my trademark you get trademark rights by actually using it in common there was another trademark office case in re may which we also cited in our papers where a woman used the name sealy an ace and a it's just a descriptive name with services so you know i think the declarations really don't support the notion that there was use now you know judge evil i mean you've raised another question which i think is is the conclusive one here  it's one that we did three extensively follow and that is that so daddy has told us this web site was not forged and the way it works is that you have a domain name but it just sits out there and i think we all learned a lot about servers  from from my secretary clinton but you have to have a server that actually hosts your website and go daddy serves as the host for mr underwood's web site there is no doubt about that and mr underwood has another business  hosting of a nd web site mr underwood came up with a new theory that said well you know it was actually hosted as a subdomain miss willis testified about that in his deposition and said no this hosting package that mr didn't allow for seven years mr burstein does this court need to resolve this question to the to dispose of this appeal you do not your honor and so i think that the three questions you need to resolve are is the georgia registration valid yes it is because it never used the trademark before he applied for it it was void as an issue the nd question is was his sporadic promotion sending out business plan sending website but did i have something that qualifies its use in commerce and because there was no linkage of the name erica the brand erica anything on that website the answer is no as a matter of law i see my time is up i'd be happy to answer any three howard declaration says my twenty four erica is a free service and among other things is a search and i personally think my twenty four erika dot com is a cool and useful form to use on page eighteen of  put the team declaration which says that my twenty four erica dot com among other things it's a search engine which has news articles movie she information t v information content suggestions from america and after information association as a matter of fact the fact that when you typed into the search engine you get a result that says that man dash erica and if that website explicitly says eric is a search engine certainly establish