weighing the fact that the subject product was cheap and that the idea that cheap product which is not in the evidence isn't sufficient to allow consumers to believe that the product contains any real crab authentic crab in the crab and we believe that this is something that should like most cases in this area should rarely be granted on dismissal on a rarely be granted dismissed on twelve emotion and it should be decided later on by the court at trial prefer but at the very least on a type of emotion and that it was a reversible error for the court to dismiss without leave and then as at the very least we should have had the opportunity to amend the complaints and additional facts which we were prepared to do so you have no problem i take it with the court looking at the actual menu right well i think the the significant portion of the general consumer and public where the targeted consumers acting reasonably could be misled and i think difficulty understanding how a menu that advertises do and it's just it seems very far fetched to see how reasonable consumer in the circumstances you're a substantial portion would be reasonably would be misled like you to try to focus on especially that i think that the fact that one menu item has a different word is something that the court in the german gerber case mentioned that there's not an obligation or a consumer to look all over and i think it's even particularly relevant on the menu expecting and really forcing a reasonable consumer to look at the appetizer section of and then you in order to determine what they want on the street item of the menu i think goes as a fact far but i think is a fact could be argued to the trier of fact but to say as a matter of law that the consumer is required to look at the course of a menu that has nothing to do with perhaps without consumers looking to buy is an obligation and somehow obviates the defendant's misleading statements word that goes to another issue in the case which is the application of those fruits cases of the crunch berry case and i think that our allegations are different in those cases because in those cases it's the name of the item that is argued by the plaintiffs as the alleged misleading statement where we're saying the ingredients in the item here so but we don't we believe that the k r a b has zero percent crab and that portion greater than that if in fact true would just be an issue for a fact and maybe you have any reason i mean maybe maybe you're right that people might think there's a little bit of c r a be in there but if it's so little i mean is there any reason to think it's more then that it minimalism out well i think it's hard to say wait a minute sometimes because the concept is that we're selling you a premium product and it has some premium ingredients in it and that's what we say isn't this leading argument and the hint of the premium product is what we're saying is this way i think another exam the fact that it is misleading and i think that the percentage is simply an issue for the trier of fact i think the allegation we have here is something that should go to the trial of a legend or any level of expertise about sushi discovery and provide witnesses and provide testimony but i think that the key fact is that the judge or the court should replace its impression of what a cheap product is versus expensive product which i think the st this is the st case to say the price matters with respect to the misleading nature of the claim that it should be something that the well the jury will certainly be able to determine i think what the reasonable consumer would expect because i think it is fair to say that there are some expectation  consumer but i think that depends on the type of consumer and i think you have to look at the typical average person not perhaps the wealthier person because the put a price because one thing that i've noticed in this kind of expensive rate so i mean is it just any average consumer is an average consumer who can afford to go to the m k or it seems like you might need to have some smaller universe that you're talking about here well i think that could be an issue for later but for issue for the twelve emotion i think that it simply didn't repeat enough as a matter of law and we say that because of the price point here that no reasonable prince who marry could believe that this is real crab at all i think that's the part that was dangerous in this ruling i think that's the are that dangerous precedent in the future council even if even if we were to disagree with you about some price point issue you have to  questioning is again additional facts that aren't in the record but in the current i think another factor i think here is that if we start if the court starts making rules like this the fact that you can ask questions applies to the fruit loops case today today i can tweet on twitter and ask directly a representative of kellogg's within seconds hey a question the fact that i might not because i think it's pointless or i don't know that it exists doesn't b and then come in and say well any reasonable consumer would understand that crap mix doesn't really have crab and even though spelled c r a i don't think that argument would get very far but hey r surrender which is a cheap white fish used to resemble more expensive fish such as crab necks and is commonly informed guess what trips me up is the combination of the word crowd which i agree by itself i would not i don't think anyone would reasonably assume it means real cream but it's the combination of that word mix that i think is the point of strongest argument because those two words that phrase in combination doesn't have an established meaning that a significant portion of the general consuming public acting reasoner circumstances common sense could be misled and i think one of the nd point that was raised by judge bennett is that you have here a menu item directly below but the only thing that certain signifies definitively is that the crab egg certainly is not one hundred percent real crown presumably those other menu items that are spelled with a c those are one hundred percent real crab i grant you what i'm what i'm suggesting  the problematic combination of crab and mixed crabs so with a k that gives rise to the potential for someone to think yeah i know why they're misspelling it because they're not giving you one hundred percent but it says nixon so individualized manner that similar to the case freeman be timing where there was a multimillion dollar sweepstakes and issue one of the principle issues presented was the qualifying language in the promotion was nearby was not on a really small it was not hidden and he was on the same page just as in this case and so i think a reasonable consumer coming in to a restaurant to seize kramnik for some items and cram for others seem to notice the difference and using conjunction simmers this captain crunch is crunch periods right so you have a use of words and sometimes can dispel the fact that there is confusion or that there is a probability has significant portion of the public would be confused as opposed to a hypothetical that is out there now because of the word mix there could be some confusion in for very few customers but i just don't know how a customer would know what to make a mix because it seems like if you had c r e b with white fish maybe you would have to call it k r a b mix because calling it c r a the mix that would make it seem like all the fish in there is pra can potentially mislead people i don't get it you say it's imitation crab is that something something so bad that you would think it drives customers away to morrow well i just didn't do we need to go out and describe to every single consumer when her belief or in writing on the menu about exactly what ingredient somebody reading it contains do we need an ass tricks for everything and i think the history is no because it's there's a substantial difference is it  it's common sense that looking at the two are side by side which is practically is on the menu there is denoting a difference in the products that invites again inquiry and i think the social utility about it which i think is your question your honor goes judy would go endlessly and to require a wait staff or to require the publication of a menu with all of that detail it would not be socially utilized in the restaurant industry can you tell us chains for asian inspired food that is served consumed at the restaurant so i think you know if you want to apply a similar analysis doing sic trademark analysis there could be a more little bit more of a sophisticated  when ordering the food product because they say you didn't go to again mcdonald's young go to a grocery store where you're finding fast food items that are already cooked you are buying your stand correctly l when you go into the restaurant compute chains has the right to expect its consumers to act responsibly and with common sense and into that incident thing they have a right to expect that a person a person of ordinary challenges in a basic reading level will see the menu and spend more than a fleeting glimpse looking at the words at issue when you notice that the price point as george anderson found was low and similar to the captain crunch berries you know a k does not would a reasonable consumer apply the standard that the law has established that we are not necessarily reasonable consumers but applying the standard would a reasonable consumer be confused be to see that this particular item contains crap and i submit that is what jessica anderson decided when he was called on to question whether this recipes and there are thousands of dollars of white things but the fact of the matter is you go to a restaurant you sit down you have a cocktail of the good server comes back and says you have any questions about the menu well if you're confused with crab next year and crab right here the reason look a server would say what is crab ness tell me what that is and i think that is exactly what judge enters it was doing when he would want it will be six a that's the problem you can't rely on tondo the customer asking for clarification and i'm not your honor what i'm suggesting is that a reasonable consumer seeing the difference between k and when it's just basic in to it in a sense that there is a difference well i'm i'm i mean i agree with you that we have a standard that should be enforced as a matter of law you know totally obvious case and i think that diet even if just as we could say no reasonable consumer in the right mind could possibly have thought whatever your alleged i'm just saying it here in this case because crab mix those two words together it was not to my knowledge it doesn't have  if you take a look at the circumstances of this particular case and of p f chang's restaurant you just can't ignore the fact that there is crab with a c on the menu and then there's crap next on the menu as well a consumer reason counsel is important proprietary ingredient suggests that it's not reasonably known because it's proprietary and almost the word and in terms of this concept of the reasonable consumer busy the restaurant will st nobody as we all know nobody's really visiting a restaurant advertisement and i think the concept of that and the concept of a sit down restaurants are not the law was the reason the consumer into the reasonable consumer typical person a menu means a dollar menu it doesn't mean p f chang's any of the do restaurant it's the law that's written generically for for everybody and all businesses and i think that it certainly could be we don't really know what the standard is on that particular point maybe we'll be back here later if means that we have a disagreement about that and then the court will have to determine that but i still have a lot of trouble getting asked why anybody especially somebody who is required to be a reasonable consumer make the leap that they are a b it's real crap that's where i'm having trouble well i certainly recognize that point of view but i believe if we go that route then the history of law unquote explosion on this area website or publication but in terms of what crab means i think the fundamental thing along that line is along with our claim which is that there need to be some value to this action and i think that was one of the questions raised by the court judge l what's the value of crab mix versus imitation crab or imitation crab mixer or some other more accurate nonproprietary description of an ingredient i think that's really where it comes down to that that action by the defendant