of confusion and the evidence of public confusion of the two marks wrapped up dramatically well one of the points smoker made a trial was well creamer you didn't even start keeping track of complaints until one thousand nine hundred eight true enough what happened in  a couple of complaints nine hundred ninety nine a few more two thousand dramatically more and continuing to increase the point being that a fact finder could readily infer from the evidence that the inclusion of smokers products in grocery stores around the country for the first time between roughly one nine hundred ninety seven to two thousand was in major factor in the infringement hundred ninety eight to two thousand and one from the roughly under ninety thousand more than seven million that's quite a change and it also coincides with this whole new look initiative that just smoker brought about during that period so yes they were in the story your honor we don't deny but the the point that i want to make is that the head to head competition was not occurring until much later but your failure to object to stores what we have here is the use of a marketing challenge in a whole new way greatly expanded there's also the evidence of confusion that is created by having the product more widely distributed and the confusion wasn't what's occurring confusion is a factor in determination of last years because this court has said you cannot have an injunction when there's been a finding of lectures so like suggest that it follows automatically because an injunction requires confusion evidence of confusion that the latches finding itself must have that factor in it as well and we did have evidence of a public infusion not really much at all in fact no evidence at all before nine hundred ninety seven and a little bit starting about the time that again the expansion the great expansion of its presence was occurring and the confusion was was of different sorts distributors and grocers for container things of that nature showing that the confusion of the public was very down doing it in some very clear respects to the detriment of creamery these are infringing uses i'm sorry  certainly the largest presence in the town it needs to be a good citizen and the accommodation to smoker of marketing its products through the factory store i suggest is something that a fact finder again could find is perfectly normal in a situation such as we have in july mark and intimate county would you say a word to us what about the requests for admission yes i'd love to say something about that your honor the when the district cour and the district court began its analysis of lax as it began with the observation that the doctrine of lax or this requires a consideration of the circumstances of each particular case just and a balancing of the interests in i think the circumstances and equities presented here are have more in common with the one l white vs white house than they do with sara lee versus iraq and the remarks of learned hand arm are pertinent to the situation here state even as the smokers mark hughes before nine hundred ninety eight two thousand creameries position was that the markets in and of themselves were potentially confusingly similar to creameries markets but there was no likelihood of substantial consumer confusion because of different marketing channels creamery candidly admit that it's goodbye tirelessly for twenty five years knowing that smokers marks were potentially year's are under reasonable delay by senior user the trademark resulting in prejudice to the junior use of the two types of prejudice are economic and evidentiary smoker disagreed latches whether the district court improperly resolved disputed issues of material fact or reviewed to know whether the district whether lacked it is a proper defense to trademark infringement has reviewed  however the district courts applications of the lack is factors on summary judgment are reviewed for clear error or abuse of discretion the lack is factors were adopted by this court in e systems versus m the district courts refusal to grant an injunction in the public interest it referred to a deferential standard as a moving party smoker bore the initial burden of proof that there was no genuine issue of material fact however creameries twenty five year delay exceeded any anal limitations and the delay is presumably unreasonable creamery bears the burden of somehow showing that that life was reasonable creamery attempts to do so by arguing that smokers conduct change you create a likelihood of confusion where none existed before the district court properly examined smokers conduct before and after nine hundred ninety seven to determine whether that conduct created a likelihood of comparative likelihood of confusion analyses such a process would be burdensome on the court ineffective to be determined whether there was a likelihood of confusion in the distant past and unfair to smoke to have a smoker selling its product in its way and for reasonably satisfied there was it was not harmful and then there was this huge expansion terms of markets smoker really didn't have a new look which emphasized still unless it had been using it emphasizing film of over the twenty various periods over the twenty five years old when it came out with let's call establish it's not the kind of change which shows confusion is more likely in fact the judge even said assuming smoker was not in grocery stores i still find there's no progress of confusion confusion was more likely when the products were culled marketed and when they're marketed in grocery stores now i used mister westwood was forced to admit smoker has been in grocery store since the very beginning helen gangers her declaration establishes that of smokers past president harold shields acknowledged that cream y what is their request to admit actually admit as you see it the the request was to admit that smokers actions prior to  dilution the the issue for trademark infringement is likelihood of confusion so when creamery in its own words that there was no likelihood of confusion they in the registration process because the test for registration is exactly the same as the test for trademark infringement and that is likelihood of confusion creamery tries to introduce some confusion some confusion if you'll pardon response gave the registration case of it because it was made for the purpose of trying to avoid latches they either didn't consider registration important or didn't see the effect of the admission on the registration issue so the admission did give the registration case away conclusively established there was no likelihood of confusion prior to nine hundred ninety seven mr staples spoke of the devastating effect that an injunction might have on his client and i would suggest that we don't know yet what the injunction is going to say again told much a small town it would be the last thing in the world creamery would want to enough evidence of it that if i find you could still find in the same channels and this is then for the first time with respect to the standard of review i won't quibble with counsel but i think submit that next questions of fact and law such as whether or not there's been an infringement on a trademark and to be aware of the maxim that an admission in order to be used against a party must be clear and unequivocal and to say that there was essentially no one cringe man before nine hundred ninety eight which has been our core contention at our reply brief which i think points out the logical fallacy of what smoker and the court are arguing here you'll find that the judicial admission was not what it is what they made it out to be then again this is the case  before you on summary judgment of the inferences from the evidence that the district court grew were improperly drawn the judgment should be reversed and the case sent back for further proceedings thank you thank you