the glue case right before the break because that's actually one of the issues today it is really a poxy case that was ended verdun i was just focusing on not calling it a sticky issue you've burned them you to dress is not something that my life is centered around and that sort of thing because i like our rules of the law rules of law where you can see algebraic functions best onder stand trade dress his you look at the two products and it gets some of all the circumstances and that sort of right the blue brief has the two products here and i'll confess to you that sometime in the past my wife has sent me to home depot or lowes i want a box stores and told me to get some real good glue and i purchased one of these but i couldn't tell you if my life depended on it which one it was other than it was probably the least expensive one or the lesser expense but that that's where i'm coming from so you need to fart my vote's concerned to tell me what i'm supposed to do other than look at these two packages yes your honor and you're right there is no bright line task for try to dress in french when it's a balancing of factors and it's not a it's not a tally up how many factors are on this side of the chart how many factors on this side of the chart the one with the most points wins and the most striking thing about this packaging is the v shape and you know how functional it is or nonfunctional in is related to function is another matter and you're right your honor in that issue is not addressed by the district court has not raised their own appeal so functionality is not an issue for appeal what is an issue for appeal is with respect to the trade dress in french reclined the two issues that i want to discuss are the actual confusion evidence that the district court disregarded and also the defendant's intent now you talked about are you mentioned looking at the products themselves while your honor that is only half different types of confusion it has are the products designer the trade dress is of products confusing as to who produces the products or is there and of confusion mistake or deception as to an affiliation connection or association between two companies in the what i call the middleman had that but there's not necessarily evidence that the consumers ha well there we don't have any evidence here your honor that actual consumers were confused but we don't need that because the affiliation evidence that we have is the strongest evidence in this case think about it your honor the two people who are confused and and what the court what the district court actually found is interesting the district court sad that there were inquiry about a possible collaboration that is per se per se affiliation confusion the con agra case from this circuit is not on behalf of consumers your honor and it doesn't have to be on behalf of consumer that's what kind of lurking is this question you know not told why didn't you do a survey to determine whether it was confusing to consumers are not your honor we didn't have to do a survey we had as sam from the way you're answering we didn't have to that there's kind of implication maybe you did but that's not on the record no we didn't do we didn't do a survey because we had this additional evidence that if the case law does not drug when you've been so much better off if you had evidence of consumer survey that there was confusion well certainly honor we wouldn't be here on this issue of actual confusion if we had a survey that s it we know your honor we didn't do it and that's a factor we ought to be able to consider in this more focused totality of the circumstance no your honor that is a factor you cannot consider in the case law is really clear that the absence of a survey does not mean that there is no confusion there's a binding th circuit decision on that point yes yes your honor i don't know with i don't remember which one it is but i'll be getting reply i'll find it for you and let you know what it is but there's a there 's i think it's allowed sarka now that you've asked me but i am absolutely sure it's says that you cannot the lack of a circuit a survey is not required to prove likelihood of confusion so anyway you hear the affiliation confusion i know it's not required but the fact that you didn't do one is a factor that can be considered that's two different things you know that yes your honor i understand but i believe that there is binding case law that says you cannot infer from the lack of a survey that there is no confusion and i thought may not have that case with the day and if i don't i'll i'll submit it as supplementation after the oral argument today but but with respect to the affiliation confusion your honor it comes from the very best people that affiliation confusion could come from and i say that because the two persons who were confused were the people who are most knowledgeable about this industry most knowledgeable about the players there but they by many tubes a year themselves may be the most knowledgeable ones aren't the ones to measure confusion i mean that's implicit in your brief and i'm not sure that's accurate your honor o'reilly's auto parts by thousands if not millions of j b well the original i was yeah but they don't have to use it in their home they don't have other things they don't as one expert testified aren't in a position i'm not quoting that inquiries about affiliation including from suppliers distributors and people in the industry are quote the most persuasive proof of likely confusion close that's the so called middleman case that's what's present here now i'm sure that gorilla glue is going to argue that in all the cases where actual confusion has been found there's some evidence of consumer confusion  purchasing consumer confusion but that's the question your honor for the jury the jury is the jury's role is the fact finder to balance everything to consider the evidence and decide whether or not our proof our evidence of actual confusion rises to the level of showing affiliation confusion and if so then that's one of the multiple factors that goes into deciding whether or not this trade dress not it is of whether you said yourself your honor that there's no bright line test on trade dress in french mint likewise there is no bright line statement from any court in this market that says you have to have consumers who are confused in order for there to be actual confusion or for there to be a likelihood of confusion there's no case that says that now the other important prog of trade dress in french meant i want to discuss at the defendant's intent this case record is replete with the intent of gorilla glue and trying to trade off the reputation and derive a benefit from j b wells market leading product dress it wasn't as clear as i thought it should have been a lot rolled those employees who authored those e mails had been making the decision about the trade dress they were the people who actually were in charge of designing the tri dress they were spot the people use the word mirror and mimic she she was the she was the design i don't know that she actually did the drawings and cetera but she was in charge of developing the package and they considered over forty different designs in fact one j b me gorilla glue employ called the package a knock off now the court didn't mention that enter order but but a gorilla glue employ who was a customer representative for lot tight i believe it was a lot guy actually called this product a such a knockoff now your honor they reached that not status after considering forty different designs and the design that they chose was the one that was closeness of the forty designs this was one that was will allow is an intent to derive benefit from the other party's reputation and is therefore probative on the likelihood of confusion close quote that's remembered that's exactly what the real of glue did here that claim came as close as possible they had in fact their instructions consistent with the no no the other things that were referred to by g b wild were self evaluation submitted by young women who work to critical in marketing where they not only stated they attempted to mirror and again the standard here on the th circuit is that it is not the intent to that they wanted to me or they wanted to me are common and functional elements of the packaging but they wanted to maintain the gorilla glue brand standards they wanted to have that bright orange coloring that has a hallmark of gorilla glue and the giant gorilla glue logo and they did that they kept products in the category are doing so that they match what consumers come to expect and so when they looked at that v shape is your honor mention they realize that that clearly conveys that this is not a multi it's not one pit glue where you have three in one pack this is a resident  e that you mix together and so what with the this mirroring you know whether it's a marketing or the the one person who was not an executive who said it was a knock off why isn't this is a summary judgment case why why are of the factors including the overall packaging design and there's no better evidence the gorilla glue had absolutely no intent to deceive then by the fact that they design their packaging to look like all of the other gorilla glue packaging with the logo and i'll point here to the vital farms be american body buildings products case out of the southern district of florida where in that case it held that any argument that the defendant had intended to trade off the good will of the plaintiff that that was weakened by the fact that they had prominently placed there eagle logo on two locations on the product hero gorilla glue we not only had the giant gorilla the dominates the entire package you also have the grill on the tubes themselves so in that case the southern district of florida noted the fact that public policy favors allowing competitors to imitate the products of their competitors and found that in ten had been weakened by the prominent placement of the logos even noted in that case just as we have here that the products were of similar size and shape and they were sold together on shelves but there was still no likelihood of confusion that's one element of the entire packaging this circuit the th circuit mandates that you must consider the whole of the package and you cannot just look at something counts against it that you guess are your argot or that could potentially count against us but it's outweighed by the packaging as a whole you need to look at the two products together as they've been displayed in numerous briefs and decide whether or not as a whole the packaging is confusingly similar it was just the st time gorilla in this product that gorilla used the word weld a the top above the two tubes just as it says j b weld the other one is angled but yes and those are two separate marks and i should know karela glue has been registered by the us trademark office as a valid trademark despite the presence of g b welds registration evidence on actual confusion and the only survey here is gorilla glue surveys which found is your zero percent net level of confusion for actual consumers but drawing inferences in favor of j v wild as the district court did they considered these alleged instances of confusion by a competitor loctite and by a retailer o'reilly's which is a remedial upon introduction of the product into the market when you look at actual confusion under the florida board university case and this  court you have to look at who was confused how many instances of confusion and the nature of the confusion so the district court considered this alleged statement that there was affiliation confusion that they did consider that it was not consumer confusion which again consumer confusion is the standard and that is the most important type of what the district court held was the nature of the inquiry the nature of the confusion at issue demonstrated that they weren't confused they understood they were two separate products this is just like the case that this court issued in two thousand and seventeen superior consulting the shakily in that case you had actual consumers so we're not talking about a competitor or retailer who had actual consumers who thought the defendant had bought the plaintiff or that the two companies had merged based on the similarity of the marks and in that case this court held that that was not evidence of confusion because the consumers knew the difference between the two and other circuits of similarly held nor beverages case out of the nd circuit held the inquiries as to the relationship between the parties that that is premised upon a lack of confusion that's exactly what we have here the th district and that the th circuit in the diluted news tribune case held that isolated instances upon the defendants introduction into the market was insufficient to establish a genuine issue a material fact unlikely to confusion that is also key because these instances that the appellant has put forth in this case this evidence of confusion which should overcome the vast dissimilarities in the packaging and gorilla glue zero percent net confusion survey those all happen at a trade show in october and september in the september october timeframe of two thousand and seventeen when this product was introduced so we're talking about very short lived confusion where the inquiries themselves demonstrate they had no belief of a connection between the two and that is negated again by the survey and everything else when you balance the factors so turning five prong test that he plaintiff much meat in order to establish false advertising in this case the district court focused and summary on that summary judgment decision on materiality that is what it is that issue before the appeal now jamie walt has claimed circuit this court held in that case was that depending on the facts it may on its own establish that there is indeed that the deception alleged here is material just based on the deception itself and i think a great example of this is actually in a case relied upon by j p well which is the kashmir camel hair case st saks th avenue and in that case the defendant was purporting to sell cashmere products but they were using recycled fibers and as a result of this misrepresentation they were using pure cashmere basically everything that you pay a lot of money for cashmere the texture the quality the characteristics of cashmere you didn't get it because they were recycled fibers so by the inherent nature of that deception that they used recycle rather than pure cashmere you weren't getting what was being advertised and that's not the case here here we have the statement still beyond a proxy now j b wall has maintained since december of two thousand and seventeen when they filed their nd amended complaint and added this false advertising claim that the deception here is inside the product now that when you actually look at the record evidence as a whole it demonstrates that that is that alleged deception is not the message of consumers are taking away i'm liking kashmir's they're getting exactly what's advertised it's a two parted he said that forms  strong bucked the record evidence on steel bond it includes a survey by gorilla glue sexpert how carette in which he asked consumers what they believed still been met and there were several options eighty seven percent of respond selected that it either meant it was a strong bond or that it bonded well to steel only ten percent believe that it had anything to do with the fact that steel is included in the product those are either one of  there any evidence about whether inclusion of stew in the product had anything to it no your honor there has been some expert analysis where there are competing at expert reports as to whether or so you're arguing that the term a poxy is not material to packaging and yet it is included on the packaging not m m a isn't isn't there an argument by virtue of the fact that gorilla glue has in fact included the term a poxy on its packaging that it's in fact material to consumers actually question your honor no answer that twofold i would say st the survey submitted by gorilla glue is actually got at the heart of the demonstrates that it that is not material the use of a poxy there is not material to the purchase however with respect to the use of a poxy and whether or not the actual use of it does indeed demonstrate that it's material in gorilla whose eyes a ads as it is understood by the industry and by consumers means a two part of he sieve if you look at the record evidence there are numerous ways that you see this st market reports all consider to party he says to be a poxy the retailers group all products that are two part of he says together that includes not only where there are two tubes but there are a syringe product so where you actually push the syringe into where you're trying to bind it in the two products automatically mix together so those are all grouped together and called  mixed together i should also note that even one of g b weld's own products is grouped together into the approx a category by retailers where it does not have the appox hearing chemistry j b well claims is required to avoid the deception and that's its plastic bond or you sole argument is that the district court improperly required it to fight to show a likelihood of confusion that the district somehow held it was necessary in order for it to prove its case that is not the case whatsoever your honor we submit that the district court properly held that due to the vast dissimilarities of the trade dress is found during the like a confusion analysis the dilution claim failed as district courts or the northern district of georgia held in darden restaurants the wilson hall drawn in j b wells faber and so to draw an inference that the lack of a survey means that there is no confusion would be an inference drawn in favor of gorilla glue and not in favor of j b well  purchase things you mix together before you actually i can't recall seeing that in any is there any evidence in this record about non and he's economy the v shape we know your mix things up again no you honor not and and things other than a poxy are in fact mixed together other and he said yeah but some of the a lot of those of bottles bob mentioned you don't want to turn those upside down all the time that's that's exactly right your honor and sometimes they come in syringes both gorilla glue and j b well have a syringe product that that is not into separate tubes and you mix those together your honor and interesting point was my somebody asked about the drop down information box in the middle well interestingly and grilled blue brief they admit this is the st time they've ever done anything like that in fact in their brief at page three they say that in addition to the gorilla glue market orange color gorilla glue also consistently utilizes informational bubble icons all right not a drop down information box but if you go to their briefs and look at their other packaging you'll see that they they use bubble icons instead of this dropdown information box the only reason they used the dropdown information box is because their designers were instructed to mirror and mimic and get quote as close to j b well close quote as possible and that's exactly what they did here they thought they were successful in getting as close as possible they didn't use those bubbles why did they use bubbles even though they say they consistently use bubbles well they don't all right also your honor but looking at we're looking at likelihood of confusion here and looking at the two products why isn't that and this is what the district court was focusing on the color scheme and there's a i mean that's a dramatic difference in the color scheme why doesn't that really carry the day in the balancing because your honor just as the restatement of unfair competition say as in this particular case they used different names and logos and colors actually increases the likelihood of confusion of affiliation confusion s exactly what loctite and o'reilly restatement specifically says is that in some instances they use names and logos actually can increase the likelihood of filiation confusion  but that branches question was about the colors yes your honor and that goes to the origin in other words the fact that they use color schemes and logos that are different than j b well does not mean there's not a identifiable names and identifying the seller of the product can actually increase affiliation confusion and the reason it does and can and does in this case is exactly demonstrated by j b well but o'reilly's and and loctite believe are thought that there might be some business relationship some affiliation between the two companies and that j b well was making the product for gorilla glue because of the use of the term whale and no your honor because of nobody knows and it but is the overall impression of the infringing trade dress it's a holistic and you're right it's not a bright  that the use of product names now i heard you that time yes your honor you said the use of product names can actually increase the risk of confusion and i ask you then is that because of statement actually says i believe is the trademark owner's name and logo and this case is trade dress so it's the trade dress it's the trade dress owner's name gorilla and its logo and color scheme so the use of gorilla increase the risk of confusion with j b well no your honor they take the use of gorilla and the use of the gorilla logo and the use of the color scheme the orange color scheme that gorilla glue uses on all of its products increases the affiliation confusion because a consumer is going to know that this product the origin of the source the source of the product is gorilla glue but that's only part one of the lanham act likelihood of confusion part two is is there an an association a connection confusion between gorilla glue on one hand and j b weld on the other and that's exactly what occurred here so if gorilla glue it use something other than the let me rephrase that use of identifying aspects are features to disclose the name of the seller of the source of the product whether it's name whether it's logo whether it's col whatever it is whatever is added or is used that lets the public know that this product comes from a certain person now the words this product comes from gorilla