morning mr a yes all right may proceed may please the court chris of all thank you for hearing us this morning this is not the st time that we have the supreme court was clear as it changed the standards substantially the supreme court said we want to make sure that weak cases we cases result in a grant of exceptional status and forward penn case can be weak for multiple ways and can be invalidate partially invalidated inventor ship problems can arise in the case of octane actually dictates itself which is a trademark case now some trademarks are strong and some trademarks are as a matter of law and this is by far the weakest conceivable possible case it can be it's weak on multiple reasons multiple faces the number one which is the most obvious is the mark itself hotel chicago's geographically descriptive for a hotel in chicago nd as we've explained there was a precedent in this circuit from this court the platinum case that specifically said in order to reach a certain amount of secondary meaning to make these marks alive we need to have here's a here's the factors this case when i was met none of these facts not one none of them here the other side has provided no evidence whatsoever as to why this case is actually strong that's that's the bird they have to say this is a normal mark this is a strong mart and this is what judge of course should have done he should have looked at all tell chicago and me should have said well why would this mark this bring  be used his discretion and as far as platinum you you noted in your reply brief as i recall that judge cox was never given is a good example platinum when you're selling home mortgage it is not clear that that mark is weak that that market doesn't function and that that mark does does nab secondary here what is really interesting is when when the charge at a preliminary hearing was given some information there wasn't a ton of information and i remember we were arguing that this murder was actually generic that hotel chicago for a hotel in chicago is what people search on google if you want to go to denmark you could denmark will tell you the name of the city so whenever you the mark is actually what someone would say and search at the markets here but that was the site in front of the magistrate judge and now in regards to a judge of course being well suited yes he has done this many times but the law shifted on there is feet under this court's feet and this court as used this years it is not natural because these cases are complicated to inject and say ok now what i need to factor is if the word open chicago item sells as a trademark if that is  was actually actually that is not the way we see it and the best example is the evidence that low e mail that is incriminating that says that even the their own management believes that this park can be secured that this park was so weak it couldn't even be filed that e mails when the judge had to look at it you don't even look at it for what it says in regards to  weakness of this mark which was argument where like you have to look at the weakness of art is a little chicago strong or weak and they didn't do that even do that he just said i'm going to look at the intent here the intent he said while this doesn't say bad faith doesn't mean that they've filed a case wrongfully so here the entire opinion is peppered with this good faith that faith argument of course if there was a bad shape case that was filed yes we get the fees but now acting says even in good faith filings if you show up for the dance and you are not prepared and your mark is weak or your patent case substantially the patent case itself is weak you end up  judge both of them when they were faced with that information specifically says there's not enough here you have an uphill battle and you need to overcome that and they specifically told this pla saying well you can go out you have the time this was august you have the time to go out get a survey if you believe your secondary meaning that there's multiple ways to bring in evidence to reinforce this case they didn't none of that and so therefore they never even tried to correct and here at the ski petition the judge that there was no evidence on the other side there's not a piece of paper there's not a stipulation there's not a rebuttal as to what this young male means even the other side doesn't want to be on the record would an affidavit saying yes i agree with what the course says this is not the intent of our people but that being said again which is really hard to understand that e mail is brought in as evidence that the mark hotel chicago is weak it's not hotel that's called the drake will tell or any of the other when you pick two words that are geographically descriptive like i case was filed have told us you can't get this mark is descriptive and so there was red flags all around that this is the weakest case and if this case is not good and honestly there is not one trademark case in the th circuit that deserves feeds this is the weakest thing that could be filed thank you will hurt appearing on behalf of l h o chicago river nothing that rose more identified rises to the level of an abuse of discretion while rose more disagrees with the decision that is not the standard of review before us this is an appeal from the district courts discretionary of valuation of whether the case was an exceptional case that stood out for the rest from the rest for the purposes of the shifting and it must be evaluated under an abuse of discretion standard under the abuse of discretion standard the relevant inquiry is not whether the opposing party or even the reviewing judges would have ruled differently but rather whether any reasonable person could agree with the district court here there isn't even room for reasonable disagreement the decision was correct l h o six in a ferment of the district court's decision because the district court applied the correct legal standard and provided a reasoned basis when evaluating the merits and the litigation conduct st addressing the legal standard the district court correctly applied acting fitness the decision itself contradicts rose moore's argument that the district court applied the wrong standard the decision both sites octane fitness and structure its analysis around the two prongs identified an acting fitness in the decision at appendix a four judge cooke chorused cites acting fitness as the legal standard he is applying judge to chorus then goes on to apply the standard using the two pronged approach he provides his conclusion regarding the strength of the parties litigation position at appendix pages eighty five to eighty seven he also provides his conclusions about the manner of the litigation conduct at pages a seven through twelve more over in applying this framework judge to chorused repeatedly uses language and factors cited in acting fitness and appendix a seven through eight he considers issues including are there was an improper  whether the case was brought for an improper purpose at appendix h well he also considered whether rose more present evidence of litigation misconduct the district court explicitly cited and apply the correct legal standard in its decision as a result of this appeal should be reviewed under an abuse of discretion standard addressing a district court's discretionary application of the law rose more has not identified much less  burden of proving an abuse of discretion under the acting fitness standard a case may be exceptional if it stands out from others as a result of an extreme weakness of the merits of a party's position or because of improper litigation conduct when evaluating the relative merits of the case the court asked a question about platinum and platinum was in fact cited to magistrate judge tax on page fourteen of rose m response in opposition to l h o as motion problem in our injunction this can be found at the district court docket entry thirty four dollars as a result platinum was a case that was before the district court at every stage of the rosemarie is simply wrong when it says that platinum is somehow controlling platinum addresses a different legal theory of trademark rights that is not present here the sniffly the plaintiff in the platinum case argued that it had trademark rights because it believed its mark was suggested because of this legal theory the plaintiff did not submit meaningful evidence on the issue of secondary meaning to the district court this distinguished this distinction is addressed in judge cook choruses decision at issue here in considering and rejecting rosemary's platinum argument judge cook corus noted on appendix a sex that l h o provided evidence of significant widespread marketing efforts global promotion and sales volume to demonstrate the market acquired secondary meaning judge cook course then went on and at appendix a nine discussed favorable precedents to l h o his position and ultimately re whether respect your honor numerous courts have held that a survey is not required of the plenary injunction stage and in evaluating the facts before him judge could corus noted the evidence of secondary meaning that was submitted before the court and that's also consistent with the johnny blast off vs l a round decision of this court which how that a claim for infringement of an unregistered mark is actionable under the lanham act section forty three a so if there is a showing of secondary meaning an unregistered mark can be actionable and when evaluating the evidence presented at the limit or injunction hearing judge could chorused when and to note that l h o provided below nothing of the alleged bad conduct ever rose to the level of a motion to compel or a motion before the district court but even assuming that rose more is correct in its characterization and judge to chorus when and explicitly considered this conduct and held an appendix page eleven that l h o his actions were not so agree just and reprehensible to make the case stand out from others and merit fee shifting here judge the very judge that ruled against l h o on the women area injunction but given his firsthand experience with the facts of the case ruled that this did not rise to the level of an exceptionally weak case or exceptionally bad conduct and in his discretion under a totality of the circumstances concluded that fees were not appropriate here under the abreu abuse of discretion standard his factual determination should be given deferen and simply taking a different view of the facts does not make judge cook or says ruling an abuse of discretion nor should selective nd guessing of individual factual determination the district court's ultimate decision based on the culmination of many factual determination outlined its decision was that the case did not stand out from the others and did not warrant a few shifting and rosemont has not identified any precedent for what it is asking the court to do here which is reverse the district court who lived with the case for failing to award fees in the exceptional case determination in the context of a lanham act case indeed it is the exceptional appeal in which a court overturns a district court's exceptional case now opposing counsel raise the issue of the e mail but the district court addressed this evidence explicitly on pages a six and a seven of the appendix and concluded that the email drafted years before the law suit was filed at a time that was significantly different from the time of the lawsuit and in between the e mail and the filing of the lawsuit l h o was recognized to have had widespread marketing efforts global promotions and significant sales volumes that could evidence secondary meeting considering the e mail in light of other evidence submitted is exactly what it means to consider the totality of the circumstances as instructed to do by the act below thank you thanks to both counsel in the cases they can under advisement