i would like to focus to oral argument on the contempt issue the district court held my client in contempt but the district court held my client in contempt and since that's the big ticket item for him i'd like to focus oral argument on the content issue and judge advocacy before i came here and the one thing that i really connected with  numbers on my brief it's not a misprint but i know the facts of this case and so i'd like to concentrate on the facts but before you get into the facts just the court have any specific questions that you'd like to ask  s basically too broad is that correct well it's it maybe it wouldn't be too broad if there had been some dialogue between these whatsoever between them and so he gets his pardon and once a year has been nothing there was there was a call or something from an attorney there was some reference to a call by an attorney there and that year he came to his friend's booth and he said hey you guys are using my pylon and mike leonard said to him well you know what i don't have to do with this i'm paraphrasing obviously you have to go talk to mr record and he told him mr mike were honored and he said i'm here to give you my annual harangue you know where there's nothing we can do about this but you know we really wish you guys to come inside the gates and sell your erisa merchandise instead of out here and again there was no contact with  record the very first contact with during the court was on september the twelfth the day before the team was issued and i'm reading directly from the trial testimony and this is david wilburn speaking at trial after i purchased a shirt with what we felt any design than it used of our marks i told him you know that basically this is gone far enough this year we're going to have to take more definitive action was his reaction if you recall we didn't have extended conversation i know he made crowd and he's he's trying to pack up his merchandise put in boxes close up for the night he goes to dinner that night with his friends and his wife and they try to make sense of this and you know i would just like to point out to the court that i mean these are people who have never seen a legal pleading i can remember the first time i saw legal pleading it was my first year of law school i went to law school late in life so it's not the case that makes me look so  and i look at it in it was a complaint for thai government workers case which was a very famous case in l a in fact i had hosted a fundraiser for these people before i went to law school so i was really interested like this is  but i could not make any sense of it you know i just couldn't handle it so you've got to take into account that this is a person that's never seen a legal pleading he's had no contact as to what the objected to and you know he did the best  and two thousand and one so there was absolutely no justification whatsoever on the eleventh hour on friday the thirteenth to go in x party without giving him any notice whatsoever and then the other thing that he did not find it particularly important to read the temporary restraining order as soon as it was served on him nor did he make any substantial concerted effort to seek legal advice until after the airshow was completed according to the court finds that sanctions are appropriate to she did make an effort to find an tourney saturday he tried to call an attorney he could he had never had any he never had any reason for an attorney even though he had been in the souvenir business since one nine hundred seventy four  other thing that i think you got to take into account when you say that he did make an effort is that i think the court is saying that this guy's just looking for a loophole and he's looking at this thing and saying now you told me i couldn't do this but you didn't tell me i couldn't do that well you've got to take that into account with the rest of the way he conducted himself through the litigation how did the trademark holder prove consumer there were some people were confused and you know we told them it was not official airways merchandise how do they prove that he sold his merchandise on saturday and sunday after the material was issued did they go there to pick sure talk to him and say hey you're not supposed to do this they did nothing they proved it he said well this is the way i interpreted it and did you did you continue to sell merchandise afterwards are there other products that he was selling it didn't have this thing depiction is pretty sure the other products that he sold were similar the store we get into confusing why some are all of his on september twelfth two thousand and two we learned that an individual but then in the jerry mccord doing business western sales were selling t shirts for the september twelfth to fifteenth two thousand to be no erases event that contained the reno air races trademark and two airplanes circling pylons this statement is misleading at best michael houghton did not learn of jerry mccourt on september the twel he learned of him by his own testimony in trial at least of september two thousand so we know him we know for sure by his testimony he knew about him for mccord had shown up right outside the gates of the event for three years in a row there he also had a going business that had been going since  four in the marino area and there was just absolutely no justification or any reason to say this guy was going to disappear into the woodwork because he wasn't and in order to do it i mean you've got to come up with some you can't just make the generalization that people disappear i mean they would have to come up with some reason to say that this particular individual might disappear and they had no reason whatsoever to say that if anything he's being held in contempt because god and i'm reading the cases and i'm thinking i don't understand this the ninth circuit says generic plus generic does not equal generic how are they saying that is generic and i don't i'm not arguing that it is because i don't believe that it is i don't believe that the those of us who are over fifty remember that you know years ago and i remember my mother saying this like why would you wear something that was advertising someone else's product you know young people probably can't believe this that you know people didn't go around with you know  hundred eighty four was murky i mean my father had a small business and i can imagine if people were going around with auburn appliance t shirts you would thought this was great so i mean generally trademark infringement it's like it's bad thing but at one time the idea that somebody was promoting someone else's goods or event was not considered so bad it was murky so i think that's kind of explains why during the court believed this contender he's not playing fast and loose with the court and i don't think that just you or under a clear and convincing standard should have found this man in contempt and i please the court my name is matthew francis i represent that we know where it's an association and i would like to address the opening comments made by opposing counsel with regard to contempt first i'd like to address the point that time mr mccord had allegedly sold some t shirts to a souvenir shop and to a small casino in reno nevada there was no evidence presented at trial that mccourt testified during his deposition that he had received a telephone call from the rain an attorney representing the reno air racing association complaining about his use of both the  honor there are two federal registrations for the pylon logo the one for six registration in the seven injunction with regard to reno air races because that allegedly doesn't do him any harm it's really the pylon logo that we were that we are concentrating on here so in two thousand there was contact made by way of another question in my mind is whether even if you noticed you could conceivably say no no this or this circumstance is that fairly broad in other words if you're real concern is that he's going to destroy years by that point in your client if there's a royalty or some kind of a penalty for intentional infringement you get damages for that right well we could get damage honestly believe that i think you'd be kind of hard pressed to show them for a judgment given sam worried about dilution but i haven't done anything for five years but we didn't know about him since we knew about two thousand actually but in our practice in reno as you can appreciate there's a lot of instances where there are fly by night organizations that sell all kinds of infringing wares right who come in for attorney to wave your hands they will typically trademark cases somebody you know we have fly by night people so i'm worried about him being fined like i therefore you know they will question is how much what kind of a record you have to lay out to get a main statement mr around mr ounce declarations we should look we should take a look at mr brown's declaration for that ok yes ron and with regard to what we're talking about declarations i'd like to also talk about that mr basically states that that was the first time that the that he had learned about mr mccord's activities at that time regarding still the t shirt on september twelfth two thousand or something is t september twelfth right well that was the first year that that teacher have been offered which is exhibit half to his declaration so that's really what he was talking about it wasn't that this was the first time that we  address an issue with regard to what other merchandise was sold in addition to that t shirt after the t r o was entered and served and i'd like to photograph of a coffee mug which has the exact same picture on it as he said that he was enjoined from selling  know only the way he kept selling the t shirts on the day he was served i understood that he quit selling them the next day that's right rather except your point is continued selling other stuff one being a mug that had the exact same image on it is the teacher that's right his teacher in his testimony your honor was that he was both packing up and selling it was the end of the day he was getting ready to fold up shop and go have dinner whatever he was going to do but he was doing that people were still coming by interested in purchasing merchandise and so this is how many after i believe it's in this deposition testimony i know it's another point that was made by the film's counsel in her opening remarks was that mr mccourt did try to find an attorney on that day or the subsequent day this saturday but i think it's relevant that he if the court has no other questions i have no no no other statements thank you very much up their goods as far as what he sold he probably did actually doesn't even know what he's told he assumes that he sold that t shirt because it was a popular it was a popular item and so he thinks he sold it that's in his deposition again that he jerry mccord handing been up front and being honest about what he did that was a violation of the t r o or infringement that he was probably honest about his interpretation of what th