reserve three minutes as a rebuttal yes this action arises out of a franchise agreement which expired by its trainers on july th two thousand and sixteen and july as of a franchise of the top limb and starting the next monday that they were creating a new entity called kennebunk children's academy and it should be noted just at this time that defendant or one other franchise and that went out of business before two thousand and ten there was a complete in your objection to the motion to stay in compel hearing about the motion purple in her injunction i did argue to the court that there was no basis for a federal claim under daystar and also when she sees me did you so you specifically the issue of jurisdiction yet with respect to de start the oral argument on august st i argued to the court because the case was filed the previous day within four hours of notice the court held that hearing me i appeared i had not filed any peepers but i argued at that time that daystar versus th century fox films precluded the reverse core on jurisdiction because because what i'm struggling with is there is a difference between whether there's a colorable quite that would allow us to have jurisdiction versus your argument now which is we have an obligation to assess jurisdiction and that the supreme court precedent and desk means that we don't have jurisdiction yes your honor obviously without merit it is wholly frivolous or is clearly foreclosed by prior decisions of the supreme court it's our position in this particular case that the the the  it's a court of limited jurisdiction and that the federal courts jealously guard their own jurisdiction with respect to with respect to cases that come before it is the obligation even if it's not raised by the parties for the court to ensure that it has jurisdiction over the dispute if the court is to enter any orders in the particular case with respect to it also it's always  the issue with respect to jurisdiction can be raised virtually any time i was supposed to know for the court that i did we did specifically also in in a in our opposition to the petition for attorney's fees it's docket number sixty in the case this is a document that was filed with the district court on may nd two thousand and twenty we did also specifically address the court's subject matter jurisdiction in this case and that they did not have subject matter jurisdiction because of the supreme court's wholly in daystar versus th century fox up with with respect to it in the reason the reason the daystar versus th century fox is so critical in this case is that that the supreme court held in two thousand and three with respect to the lanham act is that the lanham act does protect ideas concepts or communications now is the reason why that's so important in this particular case is that exactly what they're seeking to protect in this case that with respect to this reversed cassy off claim meaning and if if the court is to look at their complaint what they are claiming is that the so called total in system even that was being used by saying essentially infringing on the top will topol ins trademark so with respect to with respect to the issue is that the issue here is not is not  a particular product because the concept to reverse passing often to the intimate act is that when someone takes someone else's product produced by somebody else and puts their own name on it and sells it into the marketplace that's what the lanham act is seeking to protect and along those lines if i refer the court to page thirty seven dollars of the daystar opinion and in the in page thirty seven dollars did they start opinion the court said reading the phrase quote origin of goods in the lanham act in accordance with the x common law foundation which were not designed to protect originality or creativity and in light of the copyright and patent laws which work we conclude that the phrase refers to the producer of the tangible goods that are offered for sale what at what did the arbitrator fat find to be the good the tangible good produced because of the arbitrator did not make such a point with will i will commend to this court that this court can't the federal courts can't darragh gate or delegate its authority to review jurisdiction and to run in to be vs indio products in that particular case what happened was is that indio products had taking candles that were manufactured by mark otto could him in their own box saying indio and it sold them as clearly was that it does not protect the author of ideas concepts or communications thank you mr brewster we will hear from attorney bryant now if you will  dollars of the franchise agreement therefore the judgment of the district court should be affirmed to begin this morning talking about the topic of subject matter jurisdiction which was where my brother and her attorney brewster just left off affiliated with title len when in fact to continue to use title and system to provide daycare services the supreme court decision that the appellant's rely on and just talked about did not hold a reversed passing off claim is unavailable  is argued it's brith for rather declare that every circuit to consider the issue found section forty three and it brought enough to encompass reverse casting off the supreme court and das in the desperate case didn't reject one issue and what to exclude talk to that's not the case at all like the one that's involved here which involves services not a product and response to justice thompson's questions admitted  help about the protection of the producer of tangible goods what is that tangible good to get you are alleging belongs to your client sure you're right that's exactly the point this case in design of the classrooms the educational system the murals the ages chosen for each classroom the informational services supposed the forms that were given to the to the how to run to the center what curriculum was chosen possible that some of it might be however none of that was put into the public realm so that's the difference between a copyright were or a path where you put the information into the public realm as opposed to say run at the recipe for coca cola is a secret because if it's going to be copyrightable year i suppose the only thing that could be copyrightable are the portions of it that were put in writing you could i suppose in theory i'm not an expert in copyright law but in theory i suppose you could copyright portions of that but they're constantly updating and changing that as part of the confidential system they're communicating with the french i see about so even if you could do that and even if it was copyrightable it's still a service not a problem how can we franchise as a contract are you saying that there were things that were communicated belonging to your client outside of the contract i'm saying you are one of the things under the contract that's part of that system start part of the relationship is not only providing initial guidance on what to do with training it but ongoing training that's part of it that's not outside the contract that's called for within the terms of the contract this continuing  an example in this case of when something like that happened between these two parties it's sure as the educational curriculum over the ten plus year twelve plus year period work together your honor that was education and went back and forth to edit it all themselves with the state educational system in the state department health and human services regarding standards for classroom nurse and for procedures related to the number of teachers and students what needed to be taught all those things were constantly evolving over that twelve year period of time which my client kept up on at meetings with them to recommend with it should do and should not do to optimize their services to help the children to wear their hair i guess that would be the st example that comes to mind  a dress what you're thinking about are what you're up when you're talking about sure you know what i'm talking about services of how to run the center and the concept of how to do that they talk they call it a system where using that word here are only because that's the word in the franchise agreement that's not something that turning making up it's literally a defined term at talks about all of these different types of things as i said earlier during our tradition period there were several witnesses and several powerpoint presentations on this very topic to explain to the arbitrator exactly what was and compassed in the system and to your question earlier the arbitrator's decision to leave found a violation of the unfair competition claim under the lanham act in his decision so we're obviously were able to persuade him which brings us back to where your honor asked about earlier it's not is there a claim that we can win which we did the question is whether that claim was wholly insubstantial immaterial or frivolous given a specific case on point by the u s supreme court which there is not here and the fact that the arbitron ruled in my client's favor i think is the best evidence of that here  that's the problem the appellant's in this case because the burden is on them to show the home run case that shows my client's claims are wholly insubstantial immaterial and frivolous and there is no such case that's been cited the closest they can come is the dastard case involving goods related to a movie that was in the public marketplace so that's the closest they can come to any clip case that's even close to this never mind as your honor just put it home run chase and the burden is on them to s additional questions from the panel all right thank you mr bryant thank you or are you mr brewster you've reserved a little time think thank you your honor just with respect to the differences between what daystar held with respect to as they said the as the court said we this is page thirty four the daystar opinion we have been careful to caution against the misuse or overextension of trademark and related protections into the areas traditionally occupied by patent or copyright now to be sure it is that under the pat laws there are such things as a process kept so therefore if in fact that the total human system that they claim is protected by the trade secret law are that body of intellectual property law they could have if in fact satisfy the requirements of patent law obviously surely tried to get patent law protection and if in fact we had used that  secret law and they brought that claim in this case under mean trade secret law misappropriation a trade secrets now i will actually say it was actually spelled out in attorney bryant's argument because when he when judge thompson asked him what was being preached set what was being protected his response was a concept of how to run a day care system and that's exactly what the holding of  mattress not to spill over into it was actually a producer of either a good or if service in the mr presentation of either that good or service and that's not here but they're claiming protection in act here is their system their idea their concept of how to run a daycare center so you're not distinguishing then between good and service you you accept that services might be protected under  that and they say that that's what they provided you with services it's it's it's it's the misrepresentation of to the consumer of the misrepresent like a product the producer propped now in this particular case they want a producer of services they were a producer of an idea in which we were the producer of service so this is where the de store holding it is is that is that is that they think it's not a service here they're giving their centrally in idea or concept that they are claiming here so an essence providing you with a service you're saying that all of that should have been protected by some other intellectual property act correct is that uterus under the land under the daystar opinion they say that actually protected by copyright law that should be protected by by patent law or as they are seeking protection here is under trade secret law but it what it does it does open the doors of the federal courts to claim that all of that is is a limb act violation and open up the courts so the courts to is that violations of lamb act with respect to this isn't  the producer again what daystar why stars so important is it separates competition law from intellectual property law you know in and how that impacts the it market participants good will in the market you know as we as we know is that if if a producer is to essentially put into the marketplace of their own good but put someone else's trademark on it that's a claim that's a classic what section forty three the lanham act was supposed to get at so now we take the reverse of it which we've talked about before in this proceeding is that if you if you take someone else's product manufactured produced by someone else with product or so many also services and hold it out as your own then that too has an application though it's limited or less because it doesn't necessarily those impacts if you don't necessarily impact on a broad scale the the passing off claim or someone else's good not good will in the marketplace so that that's the in the concern for the federal courts will be this is that you know the american economy is based upon employees former employees leaving their employers starting businesses based on ideas they may have learned it in participating in the marketplace if whenever that happens that former employee starting their own business is subject to a reverse casting off claim because their former employer claims that well you must to pick that up having worked for me and you're subject to to eliminate violation the i don't believe the federal courts want to be in a position of opening their doors to all those type of claims because virtually any case like this case we this session of the honorable united states court of appeals has now recess until the next session of the court god save the united states of america and this honorable court counsel you may disconnect from the meeting