acquiescence require evidence that the defendant suffered some prejudice as a result of the delay in this case the district court made no specific findings of any causal connection between the delay and the alleged prejudice suffered by whole foods this may be regarded as somewhat off the wall question and maybe you won't know the answer but i don't understand why latches applies  with regard to whether their the law requires a causal connection between the evidence of prejudice and the delay the main argument by whole foods is doesn't necessarily need to be a causal connection their main argument is that merely all they need to do is show that they could have done something or that prejudice might have been avoided if if right had filed suit sooner but of course that devolves the defense into  one where prejudice would be found wherever there is delay and we do not think that that is the rule and certainly the cases don't talk about that as being the rule and in this particular case the evidence of prejudice was whole foods then proceeded to grant summary judgment on nearly the identical record that was found insufficient by this court to affirm the st appeal the only difference really in the record between that appeal and this one is a two page declaration from a whole foods employee and you could find the original version of that declaration in the record at one hundred and forty two dollars to one hundred and forty three dollars in opposition we pointed out that that declaration repeated the same error that was found to require reversal in the st appeal and that was it aggregated figures of prejudice for all of the alleged period of delay which was two thousand and ten through the end prejudice evidence of expectation based prejudice in two thousand and ten how can it possibly matter i mean i understand that if you when you get to the point that you actually have to prove the amount of prejudice you can there would have to be clear but at this which we can all say with some moral certainty that in fact if you want to know whether they were still opening stores and still giving training in this program they were so what difference does it make for this purpose for this purpose your honor what difference does it make if if the if the causation began in march again in april or began in november well because your honor i mean your st argument is that in for of causation that's a adequately shown prejudice well i guess i guess it applies if the court agrees for some reason that a causal connection isn't required because there were specific instructions from the previous panel on what the district court was to do in considering evidence of expectation based prejudice and those specific instructions were that the district court was not to consider any evidence that was outside of the period of delay so there are there's a dispute about when the period of delay started  according to whole foods they contend that the period of delay started in early two thousand and ten however that was not found by the district court and they make an argument that if this particular fact wasn't addressed specifically in the prior seem that some of what he said this time is the same thing they said was the case for so that's assume that's true so perfect what happens next this issue doesn't go to a jury absolutely not your honor i think that but because it is sufficiently related to the questions on which we do have a right to a jury the cases require that we have a jury rendering st because there is an intertwining of these so many facts that bear on the latches defen these equitable cases that will be found by the jury and under the can theatres and some other cases the the court is to take the lead from the jury on those company killer finding so it's not look as if we could have a bench trial on  are your honor whether or not there was knowledge of the infringement during this time of delay and there's significant evidence in this case that whole foods knew about this claim as early as october of two thousand and eleven they knew about the fact is not disputed well you pointed to was the fact that they had the the other proceeding going forward other top brass not the jury not to have anything to say about that that's the nobody understands that that's true though you just pointed t to a jury legal conclusion what other facts might be at issue well the other facts that are going to be at issue in a trademark case for honors the strength of the mark and if the mark is particularly strong as we contend it is then that is going to be entitled latches analysis well it's it's tied to the latches analysis because it weighs on it's one of the factors to be considered as to whether latches applies in any particular case if there's a relatively weak mark for example if if if the defendant had a lots of reasons to continue to use the mark and that's something that ought to be considered because they had some fair uses that they needed to make of the mark well that's something that ought to be considered in any kind of case  for latches so this is one of the factors in that in addition to whether or not there is willful infringement a case on point is that is that there is a dairy queen case i don't know i didn't expect this to be part of the questioning and whether they understood that they would be subject to a claim what that's all part of the infringement analysis as well particularly when it comes to it to the infringement so you and when it comes to this defense i think there was an abuse of discretion in the fact that the court didn't even consider the evidence that we were tied up in an opposition with a party that was closely affiliated with whole foods a great period of this alleged delay now the cases that i consider evidence of of this the reasons they can consider evidence of this is because there's a judicial interest in  of proceedings and while there is an opposition proceeding going on in the in the in the case the alleged infringer can't possibly believe that that the plaintiff has abandoned the claim the same reasons apply with equal force here against whole foods and that should have been considered by the district court but there is no evidence in the district court's opinion that that was even considered we believe that was an abuse of discretion and we also believe your honor that had the district court considered this evidence that the the delay period would have been substantially shortened because what happened was after the rights in the mark were clarified that the u much of that so called settlement negotiations is impermissible fact finding on the part of the district judge or is he just pointing out the facts of what happened and deciding whether or not that amounts to ongoing settlement meaning view is that you were making offers and they kept saying no you kept saying would you please buy my mark and you kept saying no he says that doesn't sound much like a settlement to me and the fact of what you said and what they said that's an e mail basically to a principle that whole foods she responds to it at five hundred and seventy two with nothing to indicate that they were going to consider this offer because the evidence in the record at the mine was that or oh what one was what you're talking about and what they say right where miss douglas clifford writes to miss bessie foster and says i had an encouraging conversation with chris craft was the outside counsel for whole foods and again this is upon she had a conversation with chris graf which is in the record as  well in her declaration supported in opposition to summary judgment and she says that after the op after the opposition was won chris graf said you know you should submit a demand letter so you know we can talk about what might happen now that you've capitalism outcome between all the relevant parties is still achievable and then she responds and sixty nine on the st of june she says thank you for your note someone is no longer with the whole foods but i remain in contact with chris whom i know you've spoken to so there's no at this point in time the context is the  opposition has been resolved she had done this because whole foods said pardon me with a resolve here and a half before pardon ma'am sorry here and it's resolved a year and a half before is that correct no the said yes i know you've been in contact with chris craft will consider this and then i don't have the exact e mail right now at the tip of my fingers about where she says we're going to consider this but i'll sit down and look for that and then she wasn't told until august later on that ok now we're not we're not interested in it and that e mail is at five hundred and seventy two and so so your honor this is not a one sided thing in silence of december i'm not sure about that i think it maybe is trying to look for a good afternoon and may please the court i'm steve moline for the ellie's whole foods market judge present if i understood your question you asked whether there's a th circuit precedent for latches barring monetary relief in a trademark case was that correct so the group is to assume that the i think i think where the confusion may be is there's there's a lot of dispute in other circuits every all circuits agree that latches can bar monetary relief and trademark cases judge when this court analyzed chief judge martinez his st summary judgment decision in this case it expressly affirmed his finding that plaintiff knew or should have known of the allegedly infringing conduct in two thousand and ten plane is delayed more than one time in two thousand and ten but it did not you say otherwise say it was early in two thousand and ten but i don't know that that matters i would say that it expressly affirmed that they knew or should have known more than three years before the lawsuit which was filed in december and thirteen i would also say that judge martinez originally found that they knew or should have known in late two thousand and nine or early two thousand and ten what the th circuit said last time is that in because the the the program wasn't public until too early two thousand and ten they he could see that she couldn't have known about it in two thousand and nine a so that was a that was error that was identified but that's the only error that was identified and this is the part i had the hardest time with the court said last time that the district court is to go on on the understanding question of whether or not there was a delay he seemed to abandon that entirely well i think he made very clear that he was analyzing the length of the delay and he was determining whether that was reasonable and he took to heart this court's admonition that it had he had to consider he had to accept her claim that she would try it was trying to settle the surface well i think it went beyond that he he did he said that that that effectively rebuts the presumption but then throughout he said accepting that she was trying to settle the case her actions in trying to settle that case were did not make her delay reasonable so yes she was trying to settle but at the same time they were one sided settlement negotiations they were not really reciprocated she's kept emailing and e mailing even with without even waiting to get a response please by my brantley's by my brand and judge judge martinez found yes of course she was trying to settle but any reasonable person in that situation would have realized the whole foods was not interested and would have pulled the trigger soon on a lawsuit especially sophisticated business woman who is represented by competent counsel and knows that doctrines are running that are going to to bar her her claim this court also said that yes it is said you need to consider that the  delay the one reason for the delay was she was trying to settle the case but even under that circumstance the district court could still determine that the delay was unreasonable that's a d f rd one hundred and eleven dollars teen so in our view the the th circuit provided a clear and detailed roadmap for analyzing the case on remand the roadmap identified three course corrections the judge martinez needed to make st is the point we're just talking about right and that and i believe he cited evergreen in that passage i think it's perfectly plausible to say she was doing both yes and she was trying to settle her claim but at the same time she was not interested in resolving the case in actually pushing to a resolution she was she was delaying and putting off filing she was talking about she was encouraging wholefoods to continue using the mark during this entire period and that had the effect of driving up the potential liability which is a form of prejudice that's very well recognized by the miller and whittaker cases aren't all of those factors you mentioned  one of his st questions and that is the facts are all established here the correspondence is laid out very clearly for you to see you can see about ten e mails from ms douglas all different for every response all competing inferences i mean like the reason for the delay i mean why did you pursue this you know settlement you know somebody says was fruitless you're wasting your time but i think the i think the distinction there is the the the facts that would be in dispute are what she said what the negotiations were and what agreements and what inferences you can draw from those but the inferences that you can draw from those are within the sound discretion of the trial court the application  that case about there was some confusion about how whether it's an abuse of discretion or you know these inferences that you draw and that case says here's a quote we here clarify that the appropriate standard of decided by the jury no matter what the latches question you mean i believe that's correct your honor that the jury would determine yes that's that's certainly an equitable remedy in the in the judge's discretion  time based on virtually the same record which he was reversed the st time with you know almost nothing except just a laugh for david and reason to game the game with the same now how can they do that i think what you have to look at is what the reversal was based on the reversal on latches was truly based simply on the facts that number one the panel didn't believe that he sufficiently credited  to file suit is true right so that seems to me to be different from what actually happened which was a great deal of reliance on this notion that she was really trying to so all we can do is read what judge martinez said about what how he was accepting this claim on page seven of his of his nd opinion he says specifically the court accepts that plaintiff was attempting to resolve through the entire history of the settlement negotiations between the two sides and the question here is not did he believe that she was trying to settle that's what that's what the case got sent back for is because he  her testimony that she was trying to settle the question that this was remanded for is did her accepting that she was trying to settle did that make her delay reasonable and in the court said and you could still find it's unreasonable so we have to give judge martinez some some discretion here to say i accept that you were trying to settle but the way you went about it was unreasonable and no reasonable party would have kept pushing and pushing and refusing to take no for an answer and yet still said he said she was trying to do other things she was trying to capitalize on the market sensually and so her business but i have another question o the what about the causation question that i think the the causation requirement i presume you're talking about prejudice and a reliance so prejudice is undisputedly an element required for latches and acquiescence some of the cases have stated that in terms of a reliance requirement the main case that that that started with is dan jack and that's the case that our that our panel previously cited and said was established the reliance requirement if you look at what dan jack actually did it's very clear that it's not a but for reliance requirement dan jack made a bunch of investments in james bond movies the other side complained about it was if firstly but never filed a lawsuit until they counter claimed and there's no evidence in dan jack  you show but for reliance i believe prejudice can be shown in many ways and driving at right so so reliance in the cases that is sufficient to show prejudice has been shown in cases like grupo by continuing to build a business and operating in the opening a new store in would occur in miller by incurring potential liability and in general because the defendant could have invested resources differently none of those cases add a requirement the defendant prove what it would have done if plaintiff had complained sooner and i the reason i say but for reliance which can't be the test is implicit in that that is to say i did this because of what you did it's implicit that i didn't do something else i think it's implicit that that may have been one factor in why i did this but what the what the but for test the plaintiff is trying to establish here is that we have to show that if she would have sued us earlier we would have immediately rolled over and not fought the case and i think that that's a very bad policy i'm much more interested and instead of i guess semantically talking about what kind of aligned w believe that cite stand jack for that proposition what's the difference what st of all you know it just and nd of all so what what it cites it says what it says it says what it says but it never applies the test it doesn't establishes this new test for acquiescence but it doesn't actually determine whether prejudice occurred in that case and there are there are numerous cases finding prejudice without saying it with it without requiring the defendant to prove exactly what it did all those here well the facts here is that there really wasn't and because you know you've got a situation where they had an obligation to use the mark based one hundred and eighty two thousand nine licensing agreement which they did and then they  went into it some negotiations with this party this licensee in two thousand and eleven they purchased that asset and then they agreed in that asset purchase agreement to stop using the mark so they felt like they built the business around this is not a group oath situation and grupo that name he gone to was used for the entire store and the defense the defendant opened a nd store in importantly without knowledge of the infringement claim so there was no question in the group a case that every single that whole activity of opening the store was connected to the name had gone to because that was the name of the entire store compare that evidence to what we have here general numbers of salaries for employees who did a whole sorts of other things other than work on this infringement and now claim or you know invest there or put the whole foods deeper in the hole if you want to look at that way the you have real generalized evidence of of prejudice ever demonstrate that there was reliance on the absence of a law you have to have somebody say you know look at that they're not selling us when they go to iraq well the great example is the vault case cited on pa six of our reply brief that was a case where the plaintiff's challenge to the correctness of a hearing based on per procedural defects in the hearing and the hearing occurred seven years ago and the court said no you can't do that because you knew about those procedural defects and  the the defendants in that particular case had a right they had an interest in the correct to rely on the correctness of that hearing because there was a moment of speak speak now that proves the point which is did they have to come forward and demonstrate that they sat around the room and said oh because she's not sewing us we're going to do it no i don't believe i don't believe that they had to do that groove reliance on the absence of a lawsuit well you have to prove that  line which is why you have limitations for is which is why having this whole thing is so bizarre but how do you prove that somebody did something or change their position because of the absence of a l very importantly you prove that they had no idea that there was going to be a claim of infringement that's certainly not our case and if org vast majority of this evidence that they've submitted the claim that that that satisfies lashes  last i'm sorry your honor it's the lawsuit that cuts off the lashes not the claim right right you're right that's how you measure the period of delay but that's how you measure as a as the st step how long was the delay however when you want to see whether or not there was prejudice as a result of the infringement you have to consider things like did they know about it did they make decisions because what you have here in this case if they know about the infringement claim and then they spend money on the market services all submitted for decision that completes you to come at the end of a long way