moved to the second base this morning for fuel for fuel versus a pepsi  this morning your honor smith please the court because this is an appeal from a summary judgment decision the standard of review is to novell so it's the lowest threshold that you can have under the law there's no difference so we're going to take a fresh look at the facts and the law today now to establish the fair use defense which data rate is asserting they have the burden of proving three elements and if there is a genuine issue of material fact on any one of the three elements the judgment should be vacated and the case remanded the three elements are number one gator has to show that they're not using the accused mark and in a trademark sense number two they have to show that they acted in good faith and number three has to show that the mark accused mark is descriptive under the trademark statute  slogan has been used as a trademark not merely to describe the goods or services but as a trademark so the fact that gator aid itself put it next to the slogan cater a the sports fuel company shows that was using this as a trademark how do you respond to the argument that it's not exclusive trip non exclusive in the sense of that they have the term gator it in the slogan that we're not exclusive to the sense of even though their trademark and yet they're indicating this is describe the goods or services even if they say they're doing sort of non exclusive way that's correct the then the second fact is that gator aid in its own documentation said they want to rebranded the company as the sports fuel company that was in their own documentation now gator eight presidents one possible inference you can draw from company as the sports field company the fourth fact that supports us in this case around this element is the deposition testimony of the chief marketing officer from the deposition reference correct that's correct and the sands taylor case which in which the district court granted summary judgment in favor of the trademark owner so it's a complete opposite of here the slogan aid is thirst paid for that deep down body thirst and even though the name gator aid was used in the slogan the court still found that there was no fair use as a matter of law and that was affirmed by this court so the mere fact that you're using the house mark in a slogan does not absolve you from being subject to no fair use and that that exact language is in the sense taylor case that you can't just use a house mark and then be free to use someone else's trademark now the district court dismissed that deposition testimony by saying that the chief marketing officer thirty b six witness of the defendant was not a lawyer was in a trademark expert but there's no case law that says you need a trademark expert to talk about whether the defendant was using these terms in a trademark science versus just describing the goods or services in if we had submitted the declaration from a lawyer i can imagine what the other side would be arguing right now in terms of whether that would be sufficient to overcome summary judgment i don't know how that would be better  evidence than the testimony from their own witness saying that they're using this in a trademark sense now they didn't put the t m next to the term gateway they put it next at the end of the entire slogan so they're using that as a trademark yet they still filed a trademark application the slogan gave away the sports field company so they did that not in connection with the term gator aid or the bolt they did that to get trademark rights  the office and trademark office that they were using the slogan in the trademark sense now why would they file a trademark application on that slogan if they weren't using it as a trademark i submitted at least summary judgment we're entitled to the inference in our favor now the second element is whether the defendant acted in good faith and that's a deeply fact intensive issue goes to the subjective state of mind of the defendant here we have gator aid was not only aware of our client and our trademark sport fuel but the two companies that actually done some business together this burns worked with peter aid and made presentations again arrayed on the nutritional aspects of her company so gaiters deeply aware of our client and her use of the term support fuel in the trademarks on sport fuel yet they want to head anyway and started using those terms to market and promote its product no in addition there was no good or it did not produce any opinion from any attorney giving them clearance to use this trademark  so they can rely on good faith advice and counsel as a defense to our claim of willfulness or to show that they acted in good faith on top of that there's really no internal documentation at all i mean a third  rebranding the company the size of gator aid as a sport sports fuel company you would think there'd be some documentation internally saying yeah we have clearance to use this this marker these terms and there is nothing in the record that they produce now we think that entitles us to an inference that they were not acting in good faith well it could be the entrance the other way to that you'd think of any problem it could be although i would think that there would be a do one of those factors or facts you know they could find a case that says mere knowledge of someone else's trademark does not indicate bad faith but here we have more than that there's a number of facts that support our position now the third element is whether the trademark is descriptive or suggestive we would submit that it takes a little bit of mental effort to hear the term sports fuel and think of nutritional products or services i mean that's not a term that's in the dictionary or a commonly used term or phrase sports fuel on top of that  consumers are not all athletes are people playing sports i think in the deposition again of their chief marketing officer he said over half of their consumers are people that don't even play sports it's used in hospitals to rehydrate people or person mowing their lawns thirsty in the summer will drink gatorade so how is sports fuel descriptive of their products and services when half of the consumers are not even athletes playing if they you know think oh athletes do this and that and that's true your honor but i think that is the kind of mental leap you don't it's not just the pure descriptive term where you immediately know what this is talking about nascar is a sport and people often associate fuel with gasoline so sports fuel could be a new type of gasoline for nascar you have to to get from the term sport fuel to the product that's being offered there has to be some mental leap and that makes it into the suggestive realm as opposed to descriptive and again this is a question of fact all three elements of the fair use defense are fact questions so again any one of those turns the us and in our favor done on this descriptive point though didn't the p t o say that this phrase the sports fuel company was not protectable precisely because it was descriptive of nature of the patent office did say that and that that would be a fact in defendant's favor on that issue i think there's i'm not saying that this is so one sided that we should have judgment in our favor there's facts supporting both people but that the fact that the said however that a descriptive term can never function as a trademark such a rule would not only conflate two of the three elements of fair use it would also be contrary to the well established doctoring that a descriptive term is protected was a trademark to the extent it has developed secondary meaning nor is the defendant's use of a term in conjunction with its own trademark per se the use other than as a trademark so again in the sense taylor case the court problem of the mark descriptive but still granted summary judgment in favor of the trademark on or on fair use because the mark was being used as a trademark even though gator aid used this house mark in connection with the phrase maybe realizes that they have an uphill battle on the fair use issue because they devote a substantial portion of their brief to the issue of likelihood of confusion which they say is an alternative basis on which this court can affirm the judgment and when you get into a likelihood of confusion that's a deeply fact intensive inquiry there are eight factors each one is a question of fact with a cascading series of factual underpinnings  you get into the fact that both trademarks are very similar if not substantially identical the consumer base is overlapping we're talking about in the traditional products and services the sands taylor case and that showed substantial levels of confusion and we had a second survey conducted by an independent separate expert that also found likelihood of confusion so when you get  factors if the court dives into that deeply fact intensive inquiry of likelihood of confusion there are even more fact questions there than i am fair use in my final point so i can save  five minutes for rebuttal is the one with the district court on the first page of the opinion foot no on said that he assumed plaintiffs were not asserting the sport fuel trademark against the gator a product that used the term sports fuel and we submit we showed in the record where we were asserting our trademark against those  products it was the court found an implied waiver there was no express waiver anywhere that we said we're not asserting sport fuel against the products that are termed sports fuel by the defendant and there's an array of uses that the defendant has a sports fuel it's on slogans that are in print advertising television advertising it's on the wall when you walk into one of their facilities so the sports fuel is used sometimes gaiter rate is above the sports fuel company slogan sometimes it's next to a different part sizes so the fact that you know they use it in so many ways where a certain any use that they have a sports fuel were asserting infringement that our client disclaimed exclusive rights if you look at the ocean spray case that was decided by judge easterbrook he clearly said that ocean spray was using sweetheart just script of lead and although there was maybe a used show about me the sweetheart of a deal that did not mean that they could assert rights against any other company using sweetheart the apple lease do not believe that they could stop anybody from using sports fuel descriptively your honour's record is quite clear about what their plans are the exhibit showed the internal documents that they wanted to really brand their image as being a sports fuel company rather than just a hydrating company and they name competitors everything from muscle milk to cliff bars to powerade is also using sports fuel your honour's if you look at exhibits twelve and fifty of the deposition that we took of the plant if you will see that that party use sports fuel to describe her products or fuel for sports which is i would submit is the same third parties used the term sports fuel everything from male clinic to runners world to nutritional magazines use the term descriptively it does not take any great imagination to understand that sports fuel for sports fuel is descriptive fuel has been used by since nine hundred ninety nine and it's been used by others we have examples of third parties such as wheaties powerade others that talk about fuel and refuel the runner's world magazine talks about fueling for marathons and the fact that not everybody is participating in sports i challenge the court to find one commercial were gator aid is now used in connection with sports all of them have to do with sports because a doctor may prescribe it if you have diarrhea and you're dehydrated does it mean that every you shasta before sporks the courts are quite clear that all you need to do is describe a adopting the sports fuel tagline your honor the tagline clearly was something that we said we wanted to be in the sports fuel category or our competit we wouldn't that people would not be naming competitors as other sports fuel companies if they wanted to have exclusive p t sure there is no question effect with respect to two good faith  in terms of the use of the team your honor we don't see that as an issue of fact remains for trial they used t m for gator it the sports fuel company that is a slogan that was registered kentucky fried chicken is registering fried chicken is disclaimed does it mean that of kentucky fried chicken can stop other people from describing their products as fried chicken if it fried chicken let me say a few words about likelihood of confusion it it's it's clear your honour's that likelihood of confusion is often of fact determination but if you look style versus sport fuel one word for nutrition company now they eat it mid in their brief reply brief page twenty bet their core business is a nutrition consulting firm they are not direct competitors gator it is not in nutrition consulting firm moreover your honor you look at in a reverse confusion case you look at the customers of the plaintiff and this is all reversed confusion is plaintiff's customers pay a minimal of hundreds of dollars to choose a nutritionist sometimes it's money to whom you aren't trusting to put nutrients into your body before you make a decision you make a reasoned decision when you're doing something like that and  or she provides products or some of her clientele are buying things to put into their bodies especially the athletes they should look at the labels the court knows that in these days p performance enhancing drugs or p e d s are the major concern to athletes they are not just putting something into their system without looking at it you are not going to see that either party in the same kind of retail we're diving store you cannot even buy the products of the appellant off of her website right now and when you could it was password protected argument because they never dressed it on appeal but your honors we don't care if they waived it or not because we think nothing shows more clearly that sports fuel used no intention of trademark rights in the terms sports fuel use you always see sports drinks which you have to use energy bars and other m's you sell capsules  are the cliff bars the muscle milks the powerage of the world i there any other questions that you runners have thank you for the privilege your hon know thank you again i just wanted to provide the court with a cite to the document i was referring to about rebranding itself that's documentary seventy eight it's on the second page it's an internal heater a document that says quote in two thousand and sixteen gator aid will rebranded itself as quote gator aid the sports field company and quote and sports fuel has capital s and capital f now they want to say that this is no big deal we're just describing a product but in their documentation that we submitted to the court they're talking about rebranding the entire company as the sports fuel company did they expand the kind of products that they were selling us out of the gate or a visit spanning beyond just products they're offering now nutritional services and that is in the deposition testimony that we cited in fact there's a big overlap now between products and services gator it has things like a water bottle that you're drinking on the sidelines and as you're it can judge based on your saliva whether you're dehydrated or not in a different light will show up on the bottle so gator aid is not just offering products but is offering nutritional services and our client offers both products or at least over the course of the trademark on the slogan it was only after the rejection that they then disclaimed a part of that mark but under fifteen u s c section ten fifty  two what that means is after five years later it can submit evidence that the you know the substantial use of that term and it becomes a registered trademark that in the fact that this was rejected and disclaimed doesn't remove it from trademark protection merely delays this until five years when gator it can come in and obtain registration without the disclaimer  w again the determination of whether a word or phrase is being used as a trademark is a question of fact now mr mandela went through the likelihood of confusion factors and to me it sounded more like a closing argument than a summary judgment situation miss is a case where there are facts in favor of both sides and that when there are disputes it's not right for summary judgment there are a lot of cases where likelihood of confusion was found where the goods and services were not identical but merely related in here we would submit there certainly related goods on our reply brief pages nine through twenty we walk through the likelihood of confusion factors of the court delves into that level of detail explaining how there are fact issues each or substantial number of the likelihood of confusion factors unless the court has any questions but thank you thank you very much thanks to both counsel and the case will be taken under advisement