has an advantage in that they're in a local court and have the have a case involving a week in for cumulus defendant hauled out to nevada to have to have to deal with this case  those things happen but what is going on here is an attempt by cesar to use this case as a vehicle to monopolise a generic term as a trademark public in the context of the right to use a generic term the term here in the in the field is the word coliseum for a large auditorium the oakland coliseum other coliseums around the country and caesars has used that name as a name for a place in their complex management services for not for a building for a location but for services related to hotels or casinos those are published propositions cesar's do not oppose that the clients register registrations they've been allowed are based upon different services it is possible for example it is possible to register a trademark or use a trademark that may be generic for other purposes for a different use or for a different service and there are different services so it's possible in that context what caesar's has come out of the woodwork with is trying to show use based upon answer to the buyers question who are you where where do you come from who vouches for you where is your an eric term or name of our name a product answers the question what are you and you have to ask the question in caesar's used as to colosseum what are you you're a building you're not a tory i'm your show room whatever it used has been made of that but it's a building you know it's for a place as opposed to a trademark used for a service or services or goods so the materials that have been put in in terms of the years show they want to show the nature of the nature of those services now what happened here and i understand that my client is not a sympathetic figure and that he missed a deposition and you know there are notes from doctors with respect to that he was he was ill and unable to take a deposition originally cesar's had said to the court represented to the court they didn't want any discovery didn't need any depositions and then a few days before trial they noticed his deposition and it turns out to be that he held his father went in the hospital against father ultimately passed away and those things happened it's not the way i would you know have my clients do that but that's that happened and saw and in the context of that it had been represented to the court that the case would basically come from know a lawyer says you know the judge says you're going to go to trial you get out to nevada and you go to trial so if you didn't show up for trial they'd be complaining that he didn't show up for trial so are well you know in that context i can't criticize him for not for not being there there were he is testimony was excluded without the proper consideration of the rights of it defend it under those circumstances to give a deposition in the evening or  trademarks that was all within his own testimony when he couldn't testify about that of course it's likely that he that he's going to live so we treat his carer there in the the xplosion of his testimony  pattern of of of a rush to judgment in that context he yeah i mean you know judges make the suggestion and you're you've been a trial judge and you've had that opportunity to do that judges make that s parties make that parties make their suggestions and he filed a motion for summary judgment the judge the court said that's too late it was filed on the day for responding for a preliminary injunction very early in the case it's true that we're moving towards what it was a deposition ok he will not be given the opportunity to testify under the circumstances he's there and what about the circumstances made it unreasonable and arbitrary of the judge to impose the evidence re don't know i wasn't present a trial whether those are as were made in right as the certainly that's tell us now where the record is there will leniency saying i'll come tonight because i can't come right now because i'm sick or my father's just died but i'll do it two days hence after the funeral why's that trial he was on the witness list and at the beginning of trial in the trial testimony there was a request that he be excluded and the order was granted it's my understanding  i do think that i know sticking with that i do think there is somewhat of a pattern of lack of consideration of some of these things and a rush to denied and considered but it wasn't considered we're just going to the court just moved moved on to trial and more serious than that is the use of the addition of a cause of action relating to trade secret claim that it was a incoherent right claim that may have may have existed in response to the motion for support of the summary judgment there were there were three letters put in which were put in in response to the argument that my client was an interloper and just came up and raised it raised his claim with respect to this before caesar's came out with came out with their colosseum was he on the on coming into that recently and he said no i've been involved in that business before here something that there's some discussions we even had before regarding that it wasn't regarding that name it didn't relate to that name acknowledgment from your corporate officer saying that he didn't have any use for it at that time so my question is why is that not a compulsory counter claims arising out of the  confidential disclosure and that he was the seminal idea behind the use of coliseum for a gambling casino because before that caesar's world was box like  case what i'm saying is the case that was filed and characterized by caesars was a trademark case dealt soley with the trademark aspects of that soley with coliseum as a trademark the disclosure was what i would call a california doesn't even wilder type claim with respect to an idea or concept where there may be some maybe some right to it to remuneration that does not arise from the same facts with respect to  have a d j on that i'm talking about if they saw that if they saw that if they saw that as clearly as you characterize it i didn't but if they saw that way then caesars should move to a man the new jersey one and that's what they did they moved on the last day of trial to add that six cause of action for declaratory judgment that they did not did not in friends did not violate the trade secrets but on the last bring on a motion for the relatedness and we'll deal with that issue don't wait till the end of the trial and move to a man and when they haven't had the opportunity to do that it's further made made more serious by the fact that there is no testimony with respect to that issue if that is because that's within the client's knowledge you made that individual disclosure you would be the only one that would do that there's now and announced that that facility would be named coliseum that was previous to a year ago when they had made the first announcement without indicating celine dion the record shows that within ten days of the first press release mr millennium filed an intense use application it also shows that he at the time he called us had a notice of allowance which means that the registration issue once he filed a statement of use when he called caesar's and demanded to speak first to the general counsel and then to the president and then was finally told that no one was available and yelled several secretaries which is part of the record we contacted him and his attorney and arrange for a meeting on june tenth again this is all on the record at that time we showed him our prior use of scala see him for back to nine hundred sixty six we explained what we had been doing and they said they would get back to us they did not we wrote letters asking for them to confirm that they would withdraw their assertion of international rights around the country in august and again in september there was no response until in late september a law firm of brings hoffer which is the services and the services were entertainment service convention convention conventions services group services and a variety of other services to the extent that mr millennium claims that management services are not generic for hala c m the fact  is being held in a building that is called the policy and does not make the services generic maybe it makes them descriptive that's what the trademark office found when it rejected the application however was not descriptive was not descriptive even though it described the shape of the building where the services would be provided because that was so in can grew us with the concept of where you play tennis that it was therefore different and therefore it was suggested it took a mental leap to associate that you were playing tennis in the round meaning a round building and that's not typical it also takes a tremendous mental leap to think and i would suggest to you that they're not interchangeable you can say i went to the coliseum to see the oakland a's play if someone said i'm going to the coliseum to see the san francisco forty nine er's people would wonder what he was saying stadium and coliseum  just not interchangeable they may have a dictionary similarity but this case this court is held in the filipino case that it's a mistake to a life school simply on dictionary definitions and we provided testimony about what the meaning of state and what the meaning of holocene wild and interestingly enough in response to a question that you asked earlier the other side never object vice president in charge of the development they asked the uncrossed to expand on that definition so they therefore found it worthy to try and get further definitions from that witness they therefore can't complain that that evidence was somehow changed but more importantly is this whole issue of generic misses decided under a clearly erroneous standard and the judge made findings after determining the credibility of the witnesses after seeing all the other ones and made a conclusion he applied the correct law consuming public you look at those factors and reached a decision it was nothing in the record other than their claim with dictionary evidence which we don't think in itself supports this because this is not a large facility it is not an amphitheater i four thousand seat facility but that's the only evidence they have in this record as to why it's generic we don't think that that can be car clearly erroneous their sense now that this is they've been unfairly prejudiced because they were rights though he was not going to sue us he then asked for repeated lays from the district court we had asked for a trial date of december one the judge didn't even have the first hearing on this case until stemberg nineteenth because he wanted to give mr millennium counsel and asked in which leave judge said to him give them a time for the deposition the next day the lawyer said his client could not be available for a deposition and that's when the court and the following day on wednesday january fifteen again could have been avoided if mr millennium had merely acquiesced to the fact that he could not sue us the fact that this information came forth on january sixth was also again part of an effort to intimidate us from the settlement to make an offer did however in our proposed findings of fact conclusions of law actually say that we thought these were compulsory counterclaims but that if the court disagreed that we wanted to file an amended complaint so they had that information in front of them not have notice of but then they said well let the plaintiff amend his complaints that there's other issues there and on his opening statement he also mr biographer mr silverman referred repeatedly to what he was going to show this is at a time when he knew his client could not testify but he still proffered to the court that he would be showing evidence of doubt this nine hundred ninety six events the fact that it involved the use of the policy basis on which those trademarks were made on a money internet site hubs that center dot com that says essentially mr millennial offers the following services each under its own title management services consulting services when he first did that website and this is in the record the website actually said he offers licensing buyout rights in these markets that shows that he did not have an intent to use the marks that's a bonafide intent as required by the lanham act for an received a payment of ten thousand dollars however the sanction order was for ten thousand dollars plus one thousand dollars penalty for every day that it wasn't paid today i received last night at eleven o'clock i received from my office  that we had noticed for purposes of enforcement and we were told that that's because his lawyer was not able to be in contact with him however on monday evening we received notice that mr smith was appearing and i know mr smith and he's a highly respected member of the bar and it's the various notices that he had to file for making those applications must a cost him at least hundred times three hundred my math is bad but if i do it correctly i think that's three hundred thousand dollars this is a gentleman that also professed to not have any money to pay asked but while trial counsel may be doing this on a contingency i'm sure that mr smith is not here on a contingency arguing in a field and mr buy office here today in the courtroom as well even though he withdrew from the case over a year ago so i think there's many questions as to what his true financial situation is and certainly the judge found that the affidavit that he filed was woefully insufficient i understand proceeded to insist on this matter going forward a settlement was apparently reached until we found out that no it was only going to be a settlement on a trademark claim that then we were going to obviously be faced with a lawsuit the disingenuousness of mr millennium since then it was no case in controversy to be adjudicated in the amended complaint but then while the papers were still pending in making that representation filing the state court action but not serving it honest so we could not bring it to the court's attention to after the order issued then repeatedly over and over again making assertions there was an assertion that the affirmative defenses of contract which once we saw the great secret information we understood what the affirmative defense attempted to say there were heated allegations that that was because the codefendant  arrangement between them however if you look at the record and i can provide if you want to when i sit down in the with this the stipulation of settlement or i'm sorry the stipulation entry of judgment against this codefendant there is actually as part of the factual predicates the statement that they had no contractual relationship with mr lending at any time with respect to any trademark or trade secret issue the only thing that affirmative defense related to the only thing it could relate to was the assertion of these trade secret claims which were revealed because it was considered at the time to be strategically useful and then when it was not didn't get the desired result they wanted to have the ability to  this point is there more than ten thousand known my understanding is no there is not that the ten thousand dollars was owed there was a there was a reference to a possible fine with respect to that but there has been no warrant or enforcement with respect to that my belief is that there's been that that has been sat it has been satisfied  it's been it's been purged now if we can go into the fugitive issue with respect to that if you look at that where that came from in the context of this it is an order by the district court in withdraw withdraw sounds like without prejudice they have mediately stand overnight to file without prejudice and that was done and then they said no that's not right so they did it the with that they did it with prejudice again that time and then by that time was in federal court in the district court judge there didn't understand what they were driving at and ended up doing what i think is a without prejudice at least as we spec to this case this appeals so i think that's somewhat of a you know u fugitive status as a result of that and then put that in with his not having the money and that's kind of what happens now there's this reference to just came up with respect to this debt or examination and because we asked you know did you follow that through and did you do that in this court is it takes a long time to have your appeal for a year and a half or so they did that they'd notice that on nine days notice four or five days before this hearing they noticed that for the last week they just notice this deposition on very short notice just debtors examination and then they complain when you can't make it i mean you know they know when he did depositions before he's a hard guy to get in touch with and host you know you don't always do it but to do it on nine days notice which is unreasonable short notice now ok there's a you know concern about the raise by counsel here with respect to the lawyers and this is done for purposes of delay now look certainly lawyers are busy they're scheduled out on thirty days they may come in for a limited purposes and this was a rush to judgment and you know you have to give them some ability to get lawyers and to be able to do that and you know and those things happen i don't think they were purposes of delay in the sense of vexatious litigation or whatever other than to get signed to do it and to be able to find time to try the case not many are available like i am on short notice to come in and are going to people you know those things happen with respect to the generic use celine will play there they are is there now there may be no there there but there is a place and that's the reference to it and you know this is the first example but if you go through their maps with respect to that and their use doesn't go back as  as a as a trademark the court adopted at the findings that the cite the court adopted virtually we get they were given to the court on this so they could be modified and there were you know there were there were virtually no changes with respect to that it's finds they've written to create a generic trademark out of out of create a trademark out of a generic out of a generic term you know with respect to the cross examination of a witness i don't think you can draw particularly when your client can't testify you can draw the fact that we make inquiries to cross examine a witness and sometimes you ask a question that you don't know the answer to and sometimes you do but  drug to draw to drop positive facts in the fact that a lawyer was doing the best to cross examine maybe you have a witness doesn't necessarily doesn't necessarily do that and finally and that's why late and to answer the court's question with respect to coliseum as a as a name of i place or a building for a coliseum there may be no threat there thank you