complete ban on tire ingenues use of its trade name and federally registered service more and it has done so without any proof that and that the consumer the consuming public has actually been harmed by the use of the name and mark and without any explanation as to why a less restrictive means of addressing the state's interest would not suffice in this case which of the more doesn't reflect a single person who was misled and where that that's correct your honor the board representative the board president dennis truax testified in his deposition that they had no record of any consumer any actual consumer complaining that he or she was misled by the name and the more the district court's decision should be branding automotive services not advertising professional engineering services and second even if the speech could be deemed potentially misleading the band still fails first amendment scrutiny because the state has a lesser stripped of means of addressing its interest which is a point of sale disclaimer and third at the very least this case should be remanded for a trial because disputed facts prohibit affirm and so on summary judgment of the state's total speech ban turning to the inherent inherently misleading analysis that tire engineers mark a name is not inherently misleading because it is capable of being perceived by consumers in a non deceptive manner that inherently meeting inherently misleading analysis has two important factors first it assumes a reasonable consumer exercising some judgment when encountering speech second it's an all or nothing inquiry if the speech can be perceived in a non deceptive manner then it is not inherently misleading here the name and mark can certainly be perceived in our perceived and anonymous leading manner when consumers encounter them at automotive services website detailing automotive inherently misleading speech at speech that is calculated to deceive and has no purpose other than to mislead or confuse a consumer and certainly cannot be said about a federally registered service mark that is used to brand automotive services and it is not confusing when encountered at the point of sale the state's argument on this point the inherently misleading point is that the term tire engineer has a single fixed meaning in the public's model and that it means only a professional engineer performing professional engineering services in the automotive industry that's simply not correct if you look at the dictionary definition of engineer it connotes something that is skillfully something that requires a professional license and if you look at the cases we've cited in our brief particularly the i b m case out of north carolina and the earth resources case out of missouri those courts recognize that the term engineer has widespread  use that does not relate to professional engineering and in fact is used to refer to someone involved in repair and maintenance so the consuming public does not always understand tire engineer to mean only a professional engineer second the speech isn't actually misleading because as judge smith you asked me at the beginning there is no proof that any consumer has actually been misled and that is required under this case this court's precedents what the what the board relies so on is a poll showing without any context we say that something few sun can see some consumers might be confused if they encounter the by the trade name or service mall but polling data is not sufficient  to demonstrate that something is actually misleading this court's precedents particularly byron versus landreth public citizen vs louisiana attorney disciplinary committee have all analyzed polling data in the context of potentially misleading speech never in the context of actually misleading speech so turning to the potentially misleading speech we do not think that the board's proof satisfies its heavy burden to demonstrate that the tire engineers name and mark is even potentially misleading and that's for three reasons if you look at the poll first of all the poll is a post hoc rationalization for a speech ban that was imposed without so far as we can tell from the record without any deliberate deliberation or rationale the polish commission after this litigation was ensued in the attempt to justify a speech band that had already been imposed by regulators and when you would courts have said when you use post ho justifications for speech bans you circumvent the court's ability to understand what the regulator was thinking what the regulators interest was what the cap what calculations about the burdens on speech the regulator made and you substitute post hoc rationales for speech bands to other reasons that the poll doesn't get the state over its birth first the poll it's undisputed the poll did not present consumers with the context of the market which is critically critically important when you're banning service mark in all contexts you have to show consumers a mark or at least explain to them in careful detail where they would encounter the more and third the poll did not provide respondents with the state's definition of practice of engineering or professional engineer this court and viruses landreth considered a poll that failed to provide respondents what the state definition of an in a licens interior designer is and the court said because the respondents did not have that information the poll had no probative value the same is true here the poll does not get the state over it's potentially misleading burden which is a heavy burden and especially when you consider the poll in relation to the other evidence in this record particularly the eight other state engineering boards that have looked at this name and more and determined that there really is no potential confusion in consumers who are seeking automotive services when they encounter them aren't they don't they would not the reasonable consumer would not expect that they're receiving professional engineering services at a automotive service shop but to be fair do i understand correctly those other states do regulate they just don't ban that's correct they regulatory they do find it potentially misleading they just have a different solution than the well that's correct only in one instance  texas there are eight states who said there is no potential confusion at all texas a ninth state has said if there is any confusion it's potentially misleading speech and will address it with the disclaimer which tire engineers  voluntarily placed at stores so that if any customer were to arrive at a store believing that he or she was going to receive professional engineering services they would see a disclaimer immediately that no such services are provid don't recording at all that's correct the other states have said this simply does not fall under our regulatory perve because we do not see any any basis to believe that you are offering to practice engineer you're rude that's correct we would accept the point of sale disclaimer we have no difficulty accepting that and have implemented it effectively in texas so that sort of rounds out my last point that even if the speech could be deemed potentially misleading the state has a less and less restrictive means of addressing this which is a point of sale disclaimer the state has offer no reason so far as the record shows why a point sale disclaimer would not satisfy its interests here state of texas has found that it would satisfy its concerns the district court decision did not explain or address why a less restrictive means such as this still as a disclaimer  would not be effective here and if you look at the case law i think what this court to to go back to your question judge of course what the courts do in that case when they identify less restrictive means of addressing the speech they discuss them in the opinion they reverse and render because those means are available to the state the court doesn't necessarily pick one but it says we've identified at least one and the state could could do this without imposing a complete ban on speech which again is a last resort not a first so unless there are further questions by the court i think we would request that the court reverse and render the district court's decision and of course leave open to the it wasn't whether the state wanted you to do that my question was if you for example this court should reverse and render but with the provision that disclaimer had to be included in your where instead of a disclaimer they just banned the misleading nicknames and i get to this in the public citizen as a second was a decision by the circuit i think the difference is the disclaimer is affectively saying we are tired engineers but we're not tired engineers that the disclaimer is not going to carry the same equal weight as the name if this was a faith healer your honor and they advertise themselves as faith healer medical doctor the court wouldn't say state you can't prohibit them from using the term medical doctor you could the court wouldn't say you just have to make sure that they exclaim we're actually not a medical doctor that it's it's such a contradictory position to advertise yourself as a tire engineer and then say but we're going to put on the door when you get there some disclaimer that says we're not actually a tire engineer but if they call themselves tired doctors i think you're out of that would be permissible under the constitution because i don't would be permissible it would be permissible to call themselves a target because i don't think that is misleading that's not actually when they actually misleading would be inherently misleading because no one is going to think that they are a doctor working on tar i think you and i think the way to resolve this case the clip clear way is actually on the actual misleading because i think it is really a summary judgment issue that there's competent evidence from the survey that the consumers are misled and there's no countervailing evidence and that's the point i want to focus  evidence of an actual buying one of their clients being misled or is this just based on this telephone poll it's based on the survey you're on about it's important reckoned that survey of more hundred state wide mississippians is the same consumer group that tyron juniors provides theirs their services and goods to in other words we surveyed mississippi citizens who are over the age of eighteen and who own or lease cars those are the same people the exact same people that tar engine years does it business with this was a telephone survey right it was your honor they didn't walk into the store they don't see the the trade routes as i understand your opposing counsel's position you simply go to one of these locations and it looks like a it does not look like an engineering institution i think that's not actually not accurate i would say this way in the in the record at this page nine twenty four is the actual picture this came up during the doj argument where they said survey should be thrown out because he didn't show them the trademark and they introduce to the court the picture at nine twenty four it is a blue building it has been a the only visible riding you can see is the words tire engineer's that's it there's no other writing on the outside of the building whatsoever so it's not all of these issues sort if you would say functional disclaimers about it's really not a tire shop here's why though and again i'm not sure we have any proof on this but to just use your analogy you know if they said they were tired doctors it's ok is there anything in the record about the average consumer when they see the term t engineer thinks that someone working on their changing their tar or putting a new tire on their car would actually have an engineering license would be a kinda someone working a good year in akron ohio yes i think there is evidence in the record i would say two ways i think that the evidence would be i don't think we'd have to establish that they think that the person that's changing their tire is an engineer but that tire engineers are somewhere involved in the supervision or the process and the reason why i think that the evidence we've got about that and what consumers believe is both the survey and i talked about that a little more second but also that it's consistent with every other use of the term tire engineers in the record it is undisputed that tire engineers engineers who work with tires exist and it's also undisputed that every other time the phrase tire engineers has been referenced to the public as far as anyone can ever see from the public from media from courts from consumer reports everybody uses the phrase tyrants in the years to mean engineers who work with tires if i was at a party last night and somebody said mr president what do you do for a living and i said i'm a tire engine here everyone would say ok i understand what that is but then to hone in on your question judge barksdale is but wait doesn't this change when they show up at a tire shop and they go oh wait you're not a tire engineer i don't think it does because what we show in the evidence is tire engineers their relationship to the public through the p media what they do is they they're often asked about tire selection they are experts on which tires go with what cars and they also do safety issues there advertise their interviewed all the time for its safety issues and they market tires so that when somebody goes though and says mr panetta you're a tire engineer what do you do when i say i specialize in and deciding the best tire for your car based on your driving habits and safety issues like can tire be repaired or doesn't need to be replaced someone would say that makes sense that sounds like specialized knowledge record there's two types of the evidence your honor is there's two types of in courts and congress and consumer reports web sites are all to actually engineers including your honor in the record is the website of a tire engineer w w w dot tire engineer dot com is an actual tire and near w w w dot tire engineer's dot com is plaintiff's use of the term and i think what was agreed before the district court and i've not heard anything contrary is they that tired in years cannot come up with a single example except for their use of the phrase tire engineer that doesn't refer to an actual engine near who works or has specialized knowledge with tires so i think you are honored to get your point of how is this actual misleading and in remembering this if the status tabs is that it's actually misleading it's not protected at all it's banned just like medical doctor or c p s there's no there's no disclaimer issue for actually misleading it's actually misleading because the survey information and the general information we have about the use of the term they're mutually reinforcing the survey is critically important because it went after those particular individuals that receive services or would receive services from tires in years the same universe of folks and wanted and mr bentley's very good argument that says but wait what you really need are complaints recognize this it's not the law and it's not what the law should be if we are restricted to only acting if we get complaints it means that first of all people would have to be misled second that the people would have to know that they were misled they would have to figure out wait a minute maybe they aren't engineers but should be clear even your surveys if i recall that fifty and i can never name with a case that i thought that concept was in but i don't i have not been have a case find a case that says it's got to be fifty plus one and whatever that is but that's also very relevant to though the argument about if you can only act on physical complaints  imagine this they have a customer base of well let me say if the board had fifty complaints of people who were misled about whether they were engineers were involved at all in those decisions to understand found out that they were misled three  five the obscure state board of engineers to register a complaint if i had fifty of those people who did this and i came to hire engineers and said i've got fifty complaints they would say mr president that's not statistically significant for our base and that those are one off people this could be the the crackpots that they complain about everything that's why you're on in this court and other courts have always said that survey evidence is actually the better evidence with respect to whether consumers are misled in the first amendment context of commercial free speech because you can control for crackpots if you would which is the case you cite for sure it is in the absence of an actual consumer surveys big enough to find new for s production all your and outside a couple of them starting with that the share in the sharing corp and procter and gamble cases and let me be clear about what those cases are first i don't think either party has identified a case that said you can or cannot use survey evidence in this particular type of litigation the cases that they cite the judge's distinguished service surveys and said they don't raise the level of actual for flaws that exist in surveys they're not measuring the right things no one just said but you can't use a survey at all so we don't bother to analyze it and i will say though i haven't found a case where the survey was what pushed it over the top for actual so here's where i put draw the analogy surveys are use routinely in commercial free speech cases under first amendment and under central hudson which is what we're operating here in commercial disputes all the time and here's the best example i have your own thinking about this real nobody is saying you can't use surveys to set up a potential initially i'm asking what about an actual if that's a good point the more specific that surveys are used to establish actual customer mistake that's right i think of it this way similar to the state law that allows us to bring an action to stop misleading commercial speech there is a federal analog statute it's the land of the lanham act creates a not only government as an as an action but it creates a private right of action for one business to sue another the reason why that violate the first amendment is the central hudson analysis when you go back and look at base lanham at cases they will say central hudson false or misleading commercial speech is not protected by the first amendment that's why the lanham act can have a cause of action between one company for another the best example case your honor i think to look at is the decision by this court in pizza hut versus papa john in that case pizza hut brought a false advertising claim a false commercial speech claim against papa john and this court talked about survey evidence it said in order to prevail here false advertising false commercial speech claim if you want just an injunction against papa john's pizza hut had to prove it was potentially misleading same language you're looking at here but if pizza hut wanted damages from papa johns they had to prove that actual consumers were misled again the same since one hundred analysis and this court in that case said there are two ways to establish actual misleading misled consumers one is complaints but two is a service and it's surveys are widely accepted to establish that consumers are actually misled so i look at it this way if survey evidence is good enough for pizza hut under a false claim false speech act to protect its bottom line to get financial damages to prove actually misled customers if it's good enough for pizza damages to their business in other words proof of actual consumers switching from one to the other from the defendant to the point i think from the point of to the defendant you want that sort of like actual consumer evidence isn't i think that and that's what they stablish through i think they do  three to wager on if i'm remembering it right is they have to show actually misled consumers or they do that to the surveys and i think there's probably a separate calculation that they'd have to go through for the damage when the time of service or they don't want surveys of their own consumers does that is just the generalized you do the survey it's got to be constructed right but it is not just a survey of the of those consumers what they do is they do a survey of those it would be customer base the kind of people who would be buying papa john's pizza which is why we did the survey the way we did here it's the people who are getting these goods and services are the people that they are offering their goods and services and lanham act kind of can't prove that they lost a single sale can they possibly recover they may not be able to they may get a zero dam or one dollar damage issue but here's the point i think that's relevant is to even get to damages if it's only potentially misleading the private plaintiff only gets injunctive relief but to get to that higher level to be entitled to damages you have to prove actually misled consumers and you do that through surveys or through complaints that's why this survey is so important it's what it's what if you look at the criticism in like the sims case or in seraing other cases where the courts criticized the surveys and said no it's really it's not going to get you to actual it's because they want the survey wasn't right like in the the the cajun boy pizza case we discussed that survey didn't prove actual mislay customers because it didn't survey the customers that company only sold wholesale and the survey was of retail people and it didn't use the name of the business so the court said well that's you know that may get you potential but that's not getting you actually you're not even serving the right people we surveyed the right people in your honour's we accurately described i don't hear any honest debate about whether we actually describe what the what the company does in that the survey itself this certainly is and begins the record at eight o three and it includes your honour's the actual script that was used for the survey and in the script we describe tyron juniors as a company that offers sales and services of tires and repairs of tires we didn't we didn't say they were engineers we described what it is that they did and that's an accurate description and so when we asked of the foot with seventeen questions about whether or not the company that sells and services and repairs tires and they use the name tire engine years do you think they have engineers somewhere involved and we asked it from several levels between you know are they supervised by engineers is the work performed by engineers and uniformly juran of those those are in the forty's and fifty's and sixty's of people thinking engineers were involved and that's where that's what makes it an actually mis reading for the use in this context that term tyrant in years when used for a particular business and once that survey comes in and i think the court does a good job of explaining why any questions about that is that leading or those issues are just going to wait but let me cut to why i think summary judgment is still appropriate even in this context is because if that survey comes in if it is entitled to any weight or maybe said this way a survey of mississippi consumers is relevant at all to whether mississippi consumers are misled by the name tire engineers if it comes in at all the board is entitled to summary judgment because there is no counter evidence at all about consumer impressions from tire juniors and this was important because there was a discussion in dahlberg and my motion to strike part of the affidavit what do you make of the fact that other jurisdictions either see no problem or are content with the disclosure first none of those other jurisdictions did surveys second those other jurisdictions are a mess of issues that i think of it this way mississippi texas north carolina south carolina all said you could not use the term underneath their state law mississippi got sued we didn't settle the district court agreed with us louisiana got sued they settled for a disclaimer so the court never  south carolina and north carolina came back and reversed their decisions a month later with not a very good explanation of any change of facts or so because i think they were threatened with the same lawsuit that had been filed against us over the fact is the othe states seem satisfied with the disclaimer or it's not not sufficient to justify that mississippi victory i think two reason that i think you're out i think if it leads too much into those other states because i think some of those states change their minds to avoid litigation secondly i think it best you weigh those decisions to decide what was the rationale what were they really looking at some of them your honor it's not clear what part of their state law they're looking at others it's not clear whether the state laws the same forget about the other state laws why why are your concern about some people being misled would that alleviate first of all is it if we prove it's actually misleading there's no disclaimer issue i think that gets to if it's just potentially misleading and i think you look to the public citizen case i say look the public has a and joe concha in a way there's a limitation to  expression when the disclaimer is really an attempt to undermine or to counter what is the clear import of the name if it was a dr pepper i think a disclaimer would work but think about the disclaimer here would be saying tire engineers we're not tire engineers not just we're not licensed engineers the disclaimer would say there are no engineers involved at all in any process that we do we have no connection whatsoever with licensed or unlicensed or any engineers the level of kind of disclaimer it would be like saying the medical doctor of the faith healer could call themselves a medical doctor as long as there was a asked rick when you walked into their office that said you know i'm really not a medical doctor disclaimers that joe decision is interesting joe conti was inherently misleading but in joe conti there was a disclaimer that said disclaimer invoice is not is not what you think it is basically and to try to settle it joe  party propose an even bigger disclaimer but the court ultimately said no we just think invoice is inherently misleading i think the term is inherently misleading but i think more importantly it is a question of actually misleading if the survey comes in and has any weight in this is a summary judgment issue where there just is no counter survey evidence there's no counter discussion no counter measurement of mississippi consumers it's summary judgment record issued thank you thank you  is i want to start with the disclaimer point because i think we really are at best in a potentially misleading analysis my friend mr possesses said think about if i introduce myself as i'm a tyrant i'm a tire engineer but if he immediately after that says but by the way i'm not a licensed professional engineer that immediately cures any confusion that the person might have that's exactly what the disclaimer would do in this case if the court agrees or gives the state the benefit of the doubt the disclaimer know what is the disclaimer and the disclaimer in texas i think i can recall off the top of my head to be frank just more so but it basically says we do not employ professional engineers or or perform the practice of engineering not on the front door i believe front door the counter that she would go to to request automotive sentences which are what you make of the state's point that they have evidence that fifty percent of  fair sample is actually confused i disagree with that i think that at best is evidence that there is potential confusion i think the state's own survey just shows you explored with i think what i'm saying is fifty percent are actually confused and hypothetical person who has not actually gone to the store and requested services so it's a bass demonstrates there is a potential out there that some consumer might be confused and i've i think that's clear from  seafood moral vs odom which is a district court decision that was affirmed by this court where there was survey evidence that showed louisianans were confused they thought that cajun boy indicated louisiana products in the course that even in that case there were a majority of people there were confused that's proof of potential but that that's evidence of potentially misleading speech not actually misleading there is countervailing evidence the other boards that have considered this exact point and also i think the pol itself demonstrates that there are people out there who are not confused so unless you have some poll approaching one hundred percent confusion which i've never seen in any of the cases you cannot use a poll to substitute for actual confusion and it's addressed in our brief but i do briefly want to say the argument that this court should divert to trademark infringement analysis rather than speech analysis is is not correct it's one thing to have  likelihood of confusion test in private litigation it's another thing to be able to let a state and speech based on a likelihood or a potential for confusion the supreme court in this court have not permitted that but the first moment are when the federal more rigorous than a private litigation the likelihood of confusion analysis and trading or even of private litigation leads to an injunction yes because and the likelihood of confusion alice as the survey evidence comes in as one of seven factors so you've already shown two marks that look exactly alike and then the survey evidence simply shows that there are some there are some kind of consumers that might confuse them but it's not a standalone piece of prove that you're coming into court and say