morning i'm tim cullen i represent b and b hardware plan to reserve five minutes for rebuttal where to start twenty five years of litigation depending on how you count it this and out of whole cloth meritless all those kind of adjectives the reality before this court is that in fact being be prevailed on an important legal claim to the united states supreme so it's hard for me to understand any view of this case how hard is should deserve attorney's fees as an exceptional case in atlanta so hopefully that checks one box off the list of things one a trial finally and got a verdict for trademark infringement then why are we here we're here because the jury was confused and the district court was likewise confused about the unique in pretrial filings that that was the remedy they chose disgorgement but throughout the case harvey said defended as if b and b was asked for their own lost profits that hopelessly confused the issues in the jury b and b didn't put on any proof of their own lost profit i guess not i thought the evidence was to the effect that harvest did not did not profits were not attributable to the infringement that was the basis for the verdict on that issue yeah and under the evidence that's impossible your honor even the district court you know how well you know how uphill assertion that is to  yes that was that point of view would and i await the lanham act and i've tried to think of a better analogy but i used one of the brief about coca cola and coca cola spelled differently but phonetically identical in both produce soft drinks if the infringer could come in and say i've sold one hundred nine don't know what you're saying but i mean you're creating one factual hypothetical and saying that that  analysis of their marketing as i understand the evidence an attempt to do permitted a reasonable are at least the district court thought permitted a reasonable jury to conclude that its profits warning attributable to the  every single bolt and screw that harvest sold was under the phonetically indistinguishable name of sealed tight and it was already established since two thousand and seven if that was confusingly similar to my client you know if do your starting every year starting everywhere but the but the fraud a determination that it seems to me is the linchpin of your hurdles on appeal if you can't if you can convince us th the fraud fraud finding must be overruled i don't see how we ever get the positive relief for b and b and that is that is a point that we have raised your honor on why the fraud finding must be reversed and i'd be happy to address that fraud finding was correct was was sustained that must be sustained under jury beyond a jury verdict standard review that yet we have to reverse the fraud finding use of discretion based on the trial court the motion for new trial and the ruling on the motion for a new trial and the judge's application of the fraud finding to the equity analysis remember the jury's verdict here was advisory and it is the role of the trial court to then apply the equities the jury how shall i thought this is the fraud was definitely for plain error because you did not have that argument in your motion for judgment as a matter of all right i thought that that was crystal clear ok and we'll go with plainer your honor can i ask a question yes or just go slight detour just for clarification what's the time period of infringement that is involved in in this in this trial i mean this case has been going on a long time and registration has been gained and lost in all kinds of twists and turns and i just would like clarification as to what is that what time period was actually involved in that in this case in this trial for purposes of this trial that the trial court in or in order defining the date range and that joint appendix eleven ninety seven and the start date was june twenty eighth two thousand and six and the end date was october twelfth two thousand and thirteen that end date was because that's the date that the trial court found the effectiveness being be allowing their mark to lapse and i'm sure you're going to hear about that in our guesses argument so we have a time window there of  six seven years and they both experts of pot made their damage calculations based on that seven year time window make it back to judge logan's comment about a fraud fraud has to be proven to the hil one of the elements is it has to be a material misrepresentation impacting the decision to registers and mark raised this in the briefs that the jury instruction was was confusing on that point because really  the evidence was challenging and he didn't see a jury instruction error in the issues raised on appeal that i missed that i quoted at length from the jury instruction numbers you have to spin it is it in your statement of the issues on appeal if it's not don't talk about the jury instruction so many seriously that we are going to this is why it's been going on for twenty five years every time it's raised and discussed in the  if it's brief your honor and there was confusion about whether the misrepresentation had to be material to the registration of the mark or to the later filed affidavit of in contestability it's one of the factors in why we that the fraud finding cannot be what was their proposed instruction to make the distinction clear to the jury that was the accepted instruction your honor what i'm saying is no matter what facts only not meet wait wait wait except instruction that doesn't answer my question where there was a proposed different instruction judge i'm using the jury instruction to establish the law that the facts had to meet you honestly believe that the jury got confused and you stated a bay of possible basis well the fraud with regard to this that procured in contestability be a factor that was to return as i understand the district court reasoning was to return the world to the point at which the first verdict found no infringement in which b and b still owned the mark and that's that say and failed to fail to prove  i guess i don't know how to fill a brew registration and fail to prove infringement according to the jury once back to the finding of fraud based on the affidavit submitted to the t t a b it was about whether there had been any fi action that prevented b and b from ownership of the mark before the two thousand trial being beyond the mark after the two thousand trial be in be on the mark no one cancelled it no further proceedings were had b and b continues the mark for the last twenty years and so there wasn't any fraud i've argued two more bases that i don't have time to address but one of them is advice of counsel which makes it impossible for b and b to have the required science or to commit fraud i would like to save my remaining four minutes for about oh thank you have also heard my opponent acknowledge that that is a plain error review and you have seen in the briefing that there was ample evidence supporting the jury's fraud determination that is reason enough to affirm the decision on the merits but there is actually far more in order for b and b to prevail in this appeal it needs to win on four separate argument two of those arguments are actually on plain error because there  fees in exceptional cases that's correct and even then it's a matter of discretion if the matter is where you've got a big hill to we have a big hill but we believe we have a lot a lot more power the climate in this case  stands to reason that fraudulent behavior project of behavior that in this case led to more than ten years of litigation involving three separate courts in litigation that never should have occurred if that's not an exceptional exceptional circumstance it's difficult to imagine what it is but that isn't even all that we have it when this court was when this case was last before this court the court affirmed an award of of these noting that there was already a pattern in practice of deceptive conduct we had been be fabricating an entire website in order to support it infringement claim we had to be in the manufacturing evidence with respect to one after that they took they live in gated in the end prevailed in the us supreme court and you're talking about this has been ridiculously and you're fractured litigation i am because the jury found by i thought the supreme court was wrong but obviously they got a big majority well i agree that the supreme court was wrong but that in fact is because i don't know they were they weren't wrong they were right or i was i'll let me just say that that is in many ways beside the point because it's not it demonstrates the legitimacy of the litigation the reason that it does not in this case is that how far back you want fees we want these back to two thousand and six which is when i thought you just said some of those were awarded already know because that that the holdings were vacated when this came back down on remand so just to i just want to clarify our position with respect to that because that's where i began so in two thousand and six the n b swore a fraudulent affidavit because for that project affidavit it was permitted to rebring its infringement litigation that it was otherwise absolutely barred from bringing there's no question about that there was a jury finding in two thousand in two thousand and one that jury finding so be in be with us flatly precluded from initiating litigation the way that it got around that was to submit a fal affidavit to the p t o and obtain incontestable status at that point it was able to move forward on what should have been a barred barred litigation it was not until this last jury trial that we were holding we're not saying it just to be clear i may have some personal skin in the game on that one but no they were not asking for you to revisit that we're not asking preterm with any of these holdings we're asking you to recognize that none of this litigation should have happened that three separate court three separate courts to undergo lots of time and energy resources in all in a matter that should have been foreclosed that was precluded  absolutely foreclose is the argument that the that the setting aside of in contestability that could have been obtained prior to the first jury verdict requires restoration of statutory requirements check yes and so at that point you're not getting it my question is why is it why is it so cut and dried that your client gets the benefit of the first jury finding  because there were because the the supreme court's reversal was based on turned out to be a flawed understanding factual basis thank you your honor i understand so there's actually two separate requirements that you have to meet in order to prevail on infringement one is is whether you have a protectable mark and you do not have a protectable market that's merely descriptive so that's what that two thousand infringer has a dent of the election printer has a defect in contestability such as fraud and that is the defense that we presented and that the jury found by clear and convincing evidence we had try and done if you are able under the statute if you were able to to show infringement which is likelihood of confusion so there's two problems so it is frankly there is a long history it's confusing but basically in two thousand harvest had one that b and b did not have know why the district court felt the jury verdict that you just said didn't consider the issue the supreme court found compelling is suddenly restored without a retrial on that issue  order to show infringement you have to show both likelihood of confusion and that you have a protective mark once the took took all the supreme court was considering with the likelihood of confusion bundle and that nobody nobody is here questioning was a jury verdict made final by this court saying that mark is not productive protectable because it's merely descriptive and the only way the p n p was able to get past the precludes the fact of the jury finding unprotect ability was to say we contestable right that was the change circumstance they were pointing to the actual wording contestable so once we overturned that in contestability for finding at that point there was nothing there was we were right back to the preclears a fact of a i'm afraid though as i listen to you i think you're attacking what the jury found in this case they found infringement false test designation of origin and unfair competition and don't don't you seem to be kind  hargus on the affirmative defense tried so to be clear once they had found four hargus on that affirmative defense that necessitated entering judgment on behalf of harkness but that's that's why there is a little bit of this oddity in this case where we  a it's an affirmative defense so it's a normal sort of you find that their requirements are met then you find that the affirmative defense and there's a statute you know the statutory defense to it too and contestability which is under fifteen us the one one one five b this is a little bit of a peculiar case so there's not another case where only one point it would be truly surprising if there was just if for some reason this court was able to get over the plain error finding did not tell the disc the supreme court that in fact misrepresented the status of its registration to the supreme court misrepresented the status of its registration to this court and to the district court so we really have a pile of reasons to both hold for harvest and to award if the is for this being an exceptional case if there are no further questions thank you thank you in this column for i've been in this case ten years mr grove been in it longer than i have other termes have been involved but i hear the same refrain over and over again that my client larry bogus is a dirty cheat liar and it's just it's not  e and it's been a consistent theme in this case to try to shift away from portly girl issues so i just ask the court to weigh that with a grain of salt when you hear someone making those claims against a good man who you know counsel statement was they have more power to climb and that's true and that's something that's recognized by the lanham act is you shouldn't allow the wal marts of the world to stomp on the little guys just because they have more power to to forty seven f thirty nine ninety six and it talks about a final judgment and whether an applicant ranking testability whether they misrepresented the mr bo gets in good faith did not believe that two thousand verdict was a final judgment against his rights in the mark because he continued to use the mark because the mark intended to be published on the principle redish on that though the district court made an expressed finding right that they won't garbage declaration is false words like that he's got a long quote on fourteen thirty seven of the opinion yes you are but that's what we're continuing is wrong  is that finding is not supported by the evidence where and again this far out case discusses it not only do you have to prove fraud to get killed but you have to have evidence of the state of mind of the person filling out the marketing continued be registered even after that verdict and there was no backup no attempt to cancel the mark or anything like that so first the affidavits not false second there's no evidence of a maoi intent in his mind there's no evidence that he was trying to defraud anyone further proof of that is the fact that the t t a b was well aware of all of this litigation they had tons of filings they referenced the two thousand case in that two thousand and seven decision where they representation jury verdict is inconsistent with the representation right the jury bought into this and that larry was some kind of a liar but the evidence does not support that and that's that's the argument i'm trying to make or ours for at least three reasons because of the two thousand verdict right that this that is the final decision that they had versus yes right person yes but again we contend it's not a final decision adversion to ultimately get smart because it continued to be registered at the office and he it finally my third point on that on why it was a fraud is because larry both at specifically testified that he relied on advice of counsel in making that checkbox on that affidavit and that's something that  maintained all along but has never really been adequately addressed or distinguished i'm out of time i appreciate your honor's attention to this case i know what it's a special case thank you for delving into or more time thank you counsel that is it is a complicated case and you've helped the once again straighten it out and we'll take it once again