any f d a ruling on the subject there's no record of any statute and there's no governmental opinion on point there's no expert testimony and point in fact this whole issue came up in a reply brief was mentioned support that let me ask you to step back and look at the bigger picture what confusion is does your client alleged result or could a result of here where is the confusion who was confused about what the evidence of confusion was largely based in in the record is largely based are a consumer survey or even theoretically who could have been consumer confused about what veterinarian feeling massive advertising campaign to home too both pharmacists doctors and the general public just spent forty five million dollars in a very short period of time advertising its products you don't spend that much money just targeting your products to physicians and pharmacists in fact i'm sure they spend millions focusing on physicians you should see the shrink at the physicians get well that's best for you but i think we can all recognize that broad advertising by drug companies these days is pretty ubiquitous in terms of and you'll find all kinds of prescription drugs being advertised on t v and you're told ask your pharmacist or doctor about this this or that dr for your animal or company is thinking about using this program and product for some other use in tracking medical products or tracking breast implants or anything else and you advertising associated with this name and pfizer then they associate the negative publicity related to that and assume that these products come from the same company to that's why it changed the name of its product i'm sorry did your client change the name of its change my name but you didn't well that certainly it's always theoretically possible to change one's trademark in the light of negative publicity around similar sounding trademarks however that's not really before the court i mean the this trademark show that was paid for by chauvin just a couple of years earlier quite a bit of money for a small company five hundred thousand dollars and it's been a great deal of time trying to expand the use when i'm trying to identify what the confusion is in the confusion you're pointed to is not really with regard to the origin of pfizer's product as the origin of your product but it is not assigned your clients ar concerned about that if it doesn't do anything to clarify or focus or order or change the name advertise it we're not pfizer do anything else with regard to what the origin of your product is well in reverse confusion case there's imagine if every time any junior user a huge company decided that they wanted to adopt the mark of the smaller single user and decided she you know really in the scheme of things looking at the are it seems to me though that what the logical implication of what you're saying is that once you get a trademark you're limiting the relatedness inquiry altogether so you get a you get a trademark for might use that same name for a drug so that in terms of the products there's absolutely no nexus at all and then something bad happens with the drug that effects customer perception of the trademark you have for your your water glasses if what you're the it seems to be in a way that's this case but for the fact that later on after the trial van drug was marketed your clients started marketing products they were a little bit closer to the to the drug industry but but it seems to me that you're saying that you want to have trademark protection for any potential use of a trademark name even in unrelated fields actually i'm when joe mason the principal troll then first found out that pfizer was going to use profanity as a freight mark he went and visited them and told them about what he was doing with his trademark on the product and where he was going with it and all these uses that were in a zone of extension and pleaded with them not to use that mark that was well before they ever used them are but ok but i guess what i'm trying to pin down here is what we're really fighting about in the in the question is whether the record supports summary judgement on the relatedness piece of this week wrath factors given what was what was known at the time that pfizer began using the trademark not  then you're limited in the relatedness factor altogether the question here is whether the district court was right in finding that the the users were sufficiently dissimilar sufficiently unrelated i agree with you on that that's not the law nor do i want the if you look at relating this you have to look at what other factors are out there in the marketplace that consumers may look at that they draw this connection between these two products and the status they may be related are actually exposed to that potential customers are actually exposed to that might make them associate these two more coming from the same source that's the and so then we've got some other markets we could use we bought those there's some problem here was the real risk of using the smart and the attorneys told them it was not a whole lot of rest because in a reverse confusion case it's really hard to prove actual confusion it's really hard that the only reason that royalties or even impose seems to me that endeavor is irrelevant and it certainly wasn't imposed by the seventh circuit in the two cases that it sounds reasonable royalties appropriate and i believe that there is no reason why the in addition the jury should be able to consider all kinds of evidence of potential damages in this case it should be able to consider how much money throw event spent on advertising  record i think she would say she could take the fight sadly better than anyone that the evidence in the case became available after a trial and i have to remain on the procedural appeal we came here on finale but one they couldn't use it in humans a license is clear and had the animal sent animals it's anguish and secondly they couldn't use it for antibiotics and they certainly couldn't use it the license w we haven't market it we don't market schrodinger on the drug in that field there's no evidence at all that we intended to in fact moved into that barcode id business you're on and i want to be very clear about the nature of the goats ok there's really no dispute vikas drugs do it was taken off the market one uses an antibiotic that's our product one was not allowed to use it and like they have different customers they answer the original question from the panel well who's the audience who do we market the forty five million dollars so there's no evidence you can take judicial notice matter of law common sense which is i still think part of the law of common sense that there's just not the same audience ok it's not it's a reasonably prudent consumer to ask ok who's the likely audience and so i understand you can say you are worlds apart but aren't quite so far apart here in some fashion both of these are medical type products i'll be at one of them is in jan a most the other is aimed at human contends that they had plans or the potential for expansion so that their audience would move to humans and using the category medical broadly maybe it's not so entirely unrelated it's not a medical product for yes for a prescription drug but suppose someone decides to come out with a via gra vibrator pfizer doesn't produce vibrators perhaps very different products but couldn't that lead to some confusion in the minds of the ok people who were treating deadly diseases that's correct as long as we go back to factual kind of question here as long as the marketing efforts really are aimed that that audience in fact there are lots of prescription drugs that are advertis to the general public because it's known that people do go in and ask for things like brand name is what's what the state of affairs with regard to to marketing we've heard from plaintiffs that this marketing was broad based on your briefs to your intentions to the contrary  of two things one that anybody was actually confused about no no evidence of this and to think about it it's improbable that they would be confuse they're just a totally different streams of commerce if i want to buy a pharmaceutical area which is our business ok without f d a approval and the fact the matter is the record i think is as clear as the nose on my thanks to the judge baird now only it was appropriate to deal with the issue and she should and she's backed by all the other factors which i've read which summarized and i highlighted in her decision and in our brief that as i'm as a matter of law this case should have been mercifully terminated when it was in june and class two year the issues that they raise on appeal about because a reasonable jury would have to reach the same conclusion and she is the thirteenth juror would be obligated under the law to take that away because there's no license for human use it's for animals and you can't move into a field of of antibiotics whether with animals or acquired a negative connotation because of the misfortune of trayvon and so when i ask you what's what's the confusion the answer i got back was focused on actual product that people might think plaintiff actual product might have come from this source that is now tainted so it is reversed infusion in a way that has a negative impact that first infusion doesn't ordinarily have how does that fit into the scheme of things when can you proceed on a cla that's the drug was on the market had a liver problem and then they took it off the market they didn't offer any evidence in this case i think it's very important in being one person forward they seem quite adept at putting on evidence that had a problem the one person came and said you inclined to believe for a moment that i shouldn't go i should go for other reasons but i should go to mcdonald's and order a big mac i just don't think that it's not reasonable the law would be i would say the word to even let that come into the equation i think that's wh beginning i'm impaired there because i now have this name that's that's understandable but i don't think they have to change their name that issue came up came up earlier ok but the companies they didn't offer any evidence from anybody i mean we have some you know don't look at just the prime directive look at what's really going on look at the whole commercial whole some racial context and that's what we've got to do if least if the court starts trying to figure out where things can go and what you reason look at or what they can look at we're in trouble because we're never of cases and i have found not a single case where a court came to a conclusion that in proving what the little damages are that you have to go back to what the company originally paid for the