the next case on the calendar for today is vs steve madden limited number eighteen eight thirty one presented a plausible case for trade dress infringement district court found that the description of the trade dress was too broad trade dress none of those arguments are true they didn't slap together a list the list was very specific we tried to present to the court in number of cases to show what other kinds of shoe cases would define how they would define their trade dress and quite frankly they were they were more broad a lot more broad and the courts continued to sustain those cases and you say none of none of that was true and you included the fact that they took at least three arguably for crohn's you're not saying that's not true for you the court actually we only amended the complaint understand that right and i'm speed you prepare and document this but try to describe the distinctive features twice only twice there was some discovery  in in in drafted documents that purported to describe the details of the heaters that were filed with the court and either asking rose we only proposed t descriptions of the trade and when you proposed one and then you filed one was not different than the proposal it was a we all granted the description oh that makes at least three no no your we filed the original complaint the first one right and you want a motion to a man we had the motion to him and in that a motion to amend we originally presented a complaint that was consistent with the description consistent but it was different no no it was the same and then when we finally finally filed the amended complaint and that's when we changed it consistent with the prior ruling of the pair saying there's a there's only two versions yes and really you stand on that now that's my understanding there's only two versions of the trade rest and the second version was read merely to increase the description in fact the court the that the f a a c constituted only one amendment it was only it said the alterations contained in the f a c constitute the first alterations to those claims in the actual history of the case from the first complaint that's right and that's all we had was one other amended complaint rafted an earlier one didn't you but that was the same as the original complaint that the only reason that we amended th complaint we sought to amend the complaint was to add an additional defendant tell us about these the specificity of your items them ok so the the description there's two how many shoes would you guess are on the market with a mary jane strap well i would say there are quite a few but i would also say to you say a mary jane strap don't you have to particularize new or strap in order to make  distinctive well i believe we did by depicting the shoe the actual shoe we showed this shoe not just a description in our complaint not just a description there was no description of the strap other than its colloquial name mary jane well the description was also depicted here rather and you think that's enough i think combined with all of the other elements that we included it's the overall appearance of the shoe the mary again your honor we showed a we depicted the shoe we should really this really comes down to if your if your verbal description is deficient you want you want to say that the picture carries the day for you i say the picture combined with the verbal description that's correct and if we thought a picture in this case is not worth a thousand words but that you need you need not a thousand but least a few where where would you be without the picture would you would use still say your your verbal descriptions of ice i would your honor yes because i think we're combining it with other features for example the appendage on the heel that extends higher than the weave it's very i if you look at many many trade dress claims the descriptions are no more in detail than these and they combine them with visual depiction of the items so whether it be a shoe or a pocketbook they combine them so that it's clear in the complaint what exactly it is what an injunction  injunction just copy your generic description of a shoe in the marriage and strap in the other factors and include a picture well it wasn't how would one enforce what you've asked me not i'm looking for the same kind of particularity that judge newman found wanting i think in your description exactly i don't believe that it was a generic description i believe when you combine the description as most trade dress claims do most complaints do with a picture of the shoe it is very clear what it is if you look and fact if you look at the side by sides or even the don't even have to look at the side by side so if you look at the the madden shoe versus the shoe that my client created in all three cases it's virtually dead on it's exact that does not establish trade dress infringement under our law i think that you'll have time to address this on a rebuttal let's hear from  good morning your honor is anthony lo cicero from hymns to roast one for steve madden with me as my partner douglas myrow and our colleague ben charcoal your honor before i launch into my prepared remarks would like to address judge newman's questions yes your honor there were at least three attempts to define the trade dress and that's only in the district court there was an attempt where the this matter really started in the patent and trademark office in which in december two thousand and thirteen  attempted to apply to register its trade dress and its applications were uniformly rejected on the grounds that the trade dresses were functional and not distinctive and that description differed from the these two complaints it yes i know you're on an interesting lane it differed in words from the first amended complaint but not in pictures if you're on it compares the drawing from the trademark application which appears at a two or nothing with the drawing that appears in the first amended complaint which is the subject of this appeal at eight to sixty nine iran will find they are the same so what's happened is that despite the rejection by the patent and trademark office and the multiple attempts here we're left with as george newman points out a generalized idea to use the words of all the cases of what the trade dress might be and this makes this case the perfect example of why this court for decades has said the courts must exercise particular caution in extending trade dress protection to product designs what do you say it is the significance of any of the lack of registration in deciding this case i think there are two ways in which  routinely deal with these issues who every day must make a decision who are bound by statute not to allow registration of functional features the fact that they rejected these applications is further evidence  fact what we're dealing with is nonfunctional and functional and therefore not protected because the office is so ground of functionality issue no you want there are two grounds one was functionality and the other instead really shifted its attention to district court and filed the original complaint in this case in march of two thousand and fifteen as you are pointed out there are multiple attempts to define the trade dress we're left with the first  at the heel and so on and the the text doesn't do a great job of describing the similarities between the two but what are we to make of the photographs here they are entitled to protection for an overall look i mean why wouldn't they have another chance to amend spell it out better i think i think there are three questions here in your own comes first is do the shoes the plaintiffs and the fence look similar yes  then the issue of whether that be in the sole issue whether the issues look similar would be relevant which is not the case here if shoes were subject to copyright protection which they are not then we could see whether they were substantially similar so that's the first issue a second yes it's it's certainly true that they see why you don't do a good job in describing it and in fact what they do is they produce as the magistrate judge said what the words do is they give a general idea of what it is that's protected generally speaking a close touch to a woman design lot the briefs by the plaintiff are not necessarily clear but this quite knows well what the test the functionality of a under the traditional utilitarian test a product design is functional if it's essential to the use o purpose of the product or affects the cost of quality of the product and under the aesthetic functionality test a design is functional if it would put competitors at a significant nine reputation related disadvantage imposed burden frighted said well the products have no utilitarian advantage the district court didn't think that was sufficient and surely not but then the pen the principal focus of the briefing in this case is that there are but my shoes could be wingtips they could have laces they could have a kept up they could have plain talk the fact that there are these multiple alternatives doesn't mean that my shoes are nonfunctional to adopt the appellant's ar all she designs are inherently and functional because i could be wearing sneakers to court or i could be women tips so that can't be the argument but you know what the best argument to demonstrate the functionality and the fact that in the trade dres protection here would be granted trade just protection of an idea and idea no no now with more than a swan float or a car design with the pictures a cut out for the design of a cable jewelry but one of the trade dress elements is the find as he raised portion of the heel with a cutout through which the weave can be can be viewed is it is it cut out totally or does it go through to some  close to to some fabric or not you don't see through it that's right you see through the cut out portion so you can see the we've which otherwise forms part of the design that was the shoe in offered as an exhibit and in the attached to the some of the motion practice but i'm not positive design or record here i believe you but i think the answer people know better have told me you know you on the actual she was not in the record but it was offered in the trial court pictures were judge newman's concern about the specifics of the show as it's the find one feature for example on this comfy shoe is we define it as the approximately a quarter inch multi color a multi shaded wide straps which form a woven distinctive alternating pattern on the upper portion of the shoe and then present a picture of the mary jane strap which a rod of around the front yes  describe the colors we way describe it is a multi color right does not mean you get to protect any one of hundreds of combinations of colors if it's all that multi colored not in  itself your honor but when combined with the other features of the shoot the answer would be yes you say that but again if you come to the end of the case and when and you get an injunction that protects them all to color pattern then you can have a blue to read want to yellow green and white one of those would be enjoying because you got protection for a quote multi colored well again i think the standard in this court is decided in landscape i believe was the overall look of the shoe so the fact that the multi color could have been red or green or blue in an orange if it created the same overall look and it was a quarter inch multicolor we've i think then the answer  years ago and the district court was very clear that the trade dress claim could go forward but that there was no grounds to copyright the design on the ship so we did not pursue a nor did we nor did i not simple that's precisely their point this is justice well it's a simple we've combined with five or six other elements so it's an overall look it's not just a simple we've if i had stopped if the if the plaintiff had stopped at that one item in its description i would agree with you a simple we've would not have sufficed but when you combine it for example with the other elements and to answer your point your honor about the size of the mary jane strap when you look at the picture that it combines with the other description you can't just look at it in isolation the complaint we talk about a quarter inch weave there are four we've four straps four different weaves here that show that that mary jane strap was one inch it shows it in the picture now we could elaborate further if we had a right so we met and if that was the issue but at this point the court said it would be useless for us to try to with men but we don't believe that we think that if that's the issue that we need to expand and say it's one in strap and to find the collars that we're looking at we believe we could do that i didn't believe it was necessary in light of the fact that at the complaints and we did present numerous ones in fact madden itself is involved in three active trade or two three active trade dress claims in the southern district today and each of those complaints present and i can give the the docket numbers if you're interested but each of those complaints present a description of trade dress which is far less involved and then the descriptions that we have and combine it with well maybe they will your honor but this is the way trade dress complaints are drafted typically there's a description as detailed as one believes can communicate and then there's pictures