trade dress is the composite tapestry of visual effects i wish i could take credit for that definition of trade dress but i cannot that is this court's definition of trade dress in the clicks billiards case which was pen courts right now and i think it's because of a perceived conflict that they have which i will address that they perceive that standard is conflicting with another standard that they believe they are bound by which i will argue they are there is an incorrect perception but i think that's important that we start there because i think that's where the district court went wrong in this case is i do not believe the district court correctly applied that principle that trade dress is not something that we should carve up into individual elements and ask well what about this element could it be modified would you still claim that that's precisely what the district court did in this case and in fact the bill your clicks billiards case stated in it went further than just giving that definition composite tapestry of visual effects but it actually stated quote it is crucial that we focus not on the individual elements but rather on the overall visual impression that the combination and arrangement of those elements create end quote that's easy enough i think fair enough to understand other courts of followed suit in the august stork case which is cited in our brief seven circuits that dissecting essentially dissecting trade dress into components quote can cause a court to miss an overall similarity and quote i think that's the the reason for this rule and they're not necessarily inconsistent if you have to identify what are the components that make up the composite correct i think that's right your honor and i would agree i don't think that there are there are conflicting standards but i think that the district courts are beginning to wrestle with the push and pull that they're proceeding because what the district courts are doing is on the one hand you have trade dress is the composite tapestry of visual effects but on the other hand you have what the district court of that in this case which is as a matter of essentially pleading as a matter of essentially putting the court and the defendant on notice of what it is that you claim as your trade dress there are a number of courts outside of the circuit saying that you must articulate the specific elements which compile which comprise your distinct dress and those and those are listed in the in the record in the order at your fourteen what we can see is the district court actually makes a leap from the analysis as to whether something is inherently distinctive which i think goes to the clicks billiards case and looking at the composite tapestry and makes this leap over to what must a plaintiff do in the outset to define what it is claiming it owns as its trade dress and the problem that the district court encountered here this report actually used the term strenuous burden saying plaintiff has a strenuous burden well wait a second doesn't say that there's a different pleading standard that would apply to trade dress claims this is not a fraud claim where we have to plead with particularity and all of these district court saying well this must be you must plead this with particularity you know that that's that has no basis plausible claim state a plausible claim for trade dress infringement under rule eight that's the only standard that i'm aware of in this case i don't think the district court properly applied that standard in in the foundational really what serves as the foundation for the district court's decision in this case which was not that the trade dress was not inherently distinctive just a court there's a separate question first question is whether it was appropriately defined whether whether it was defined to then reach whether trade dress as defined is inherently distinctive and i think the district court conflated those two and sort of begins to go through the inherent distinctiveness analysis but then ultimately the grounds for for the dismiss for granted summary judgment it's the court stated quote because it has not clearly defined its trade dress plaintiff has raised no triable issue as to inherent distinctiveness so my argument here for reversal is first of all i disagree with that i think the complaint and everything in the record does state a plausible claim for trade dress infringement i think it's more than possible and i do think especially including the visual examples that they are of at the very least put on notice of what we are claiming constitutes our trade dress the the the point of that being that my client is entitled to have its trade dress examined  under the inherent distinctiveness analysis which actually hasn't happened yet because the examination has been as to their definition how did we get i don't i don't think we have a ninth circuit case that actually says you have to lay out the elements we have cases from other circuit i agree with that and do you think it would make sense in terms of resolving any ambiguity that we say you have to lay out the elements of your trade dress recognizing that individual elements may not in and of themselves be protectable but that you look at the totality i think it would make sense to clarify the standard but i don't know that that's how the standard should be clarified and let me explain certainly a plaintiff must do something by way of describing its trade dress and but not necessarily that one would list all of the elements and i can give you an example if we take the blue v to cad tooth which i'm using as an example only because it's the simplest of the trade dress it's it's just a blue computer aided drawing it's a deep blue color which is sort of unique and it's not the color of the actual product that the product is white like a tooth and it's got vertices running across it right so what what have we essentially  is that what i've just described to a blue computer computer a drawing with vertices running across it and it was specifically used to market and sell a very very nice product which is not just dental products we're talking about pediatric nia dental crowns that require minimal preparation for from the dentist the dentist is putting in minimal prep time to set this crown that's that's what the blue v two crowns are being used for the defendant used it to market and sell the exact same thing there lp or less prep line of products so it's not just dental products it's i mean we're talking about something very very narrow but i have described it as a deep blue computer aided drawing with vers of a tooth with verses if you know the district court asked the questions is what the district court stated it is unclear whether plaintiffs claimed trade dress focuses on computer aided shaded teeth with the same ver angles well so should i have listed that so there are seven thousand vertices on this tooth and even here are the angles of each one this one is at thirty percent this one is forty percent so there is a line somewhere your honor in how many of the elements you have to we have a thing like that if this court room where restaurant and there's a lot of restaurant trade dress and we were really claiming for example this upper part in the murals and that sort of thing kind of in the old days of  you know some of the hard rock cafe or something but the court would want to know what are you including these benches to i mean this is part of it so there is a practical element i think for the district court to say well what 's not included here and we can't make a rule just for dental implants or these dental devices we have to make a rule that would apply to restaurants to band a kinds of other things so in your view what do you think is the reasonable scope and i think i think i think that if it states a plausible claim for a trade dress infringement that puts the defendant on notice of what is being claimed and here i guess what i would offer to the court is that there is a there is a way we got here with this order which really was out of left field it was really the it was not what was brief in summary judgment that's in the record when counsel called me to meet and confer on summary judgment and and my understanding what counsel's really argument has been throughout this case is a unique argument it's the argument that because certain trade dress elements were stock photographs or were independently protectable intellectual property that the incorporation of stock photographs into an overall tapestry that forms the trade dress means that's not protect  and i said thank you very much counsel i disagree because this is a look and feel case it's like the two pesos case where in the mexican food restaurant you don't have to prove that you are the creator of the floral carpet that has arrows and all the things that were precisely in fact in the clips billiards case i mean here's an example you know they claimed that the the video games that countered the bar top video games that were there were a part of their overall overall trade this was certainly those video games were copyrighted video games that they didn't create their in house at the billiard hall but the fact that they're independent independently protectable intellectual property doesn't mean that they can't be claimed as an overall part of trade dress and the example that i will give to show the court that we really mean that and i stand by that is the example of that lavender trade dress which is not the subject of this appeal but there we don't have the same photographs we actually have a photograph that my client took of its own dental patients found a very similar sort of i couldn't find that photograph because that photograph was actually taken by my client not no longer using stock photography at this point and they found a very very similar photograph and that that i'm still claiming that's a trade dress violation has nothing to do with the ownership of photograph it's studied it is confusingly similar to the look and feel of my colleagues otherwise you might have a copyright violation exactly which hasn't been briefed here that hasn't been briefed in this case no copyright  after year after year what i believe is clear intentionally so is confusingly similar to the trade dress that my client has claimed and has adequately described so that's the number one you know if it's confusingly similar and then and then t that's that goes to the point of these questions these were torkel questions that the that the district court asked in its order about whether you know about these additional elements about well you know you are you claiming that the i mean actually one of the questions going back to the going back to the blue v two you know does it matter that that this is the same deep blue color so if the if the court  curious about that and i'd offer it yes it matters were claiming deep blue i'm not claiming other colors council will argue oh but it's but folks have used different colors and in fact the appellant in this case has used different colors for different products but that's so counsel made a couple opening remarks that need to be corrected number one this was not a rule twelve motion to dismiss challenging the sufficiency of the complaint the issue below apart from ownership of the intellectual property third party intellectual property is whether you can claim trade dress rights at all whether you can claim protectable rights in short term isolated advertisements employing common stock images easy paedo has cited no case that i'm aware of that grants trade dress rights at all in advertisements the common trade dress mechanism is product packaging all the cases make clear that labels and wrappers and containers are the trade dress that give rise to trademark rights vague aspects of a marketing theme or advertising has never qualified for trade dress protection so council bypasses that and steps to the second point that there is protectable trade dress in three advertisements even though easy paedo and other manufacturers of prefabricated dental crowns have you smiling children have used pictures of teeth of crowns and a number of other images in the tapestry of what the consuming public dentist see in fact in the record there's a there's testimony from a trade journal representative that nobody buys dental crowns because of the picture of a smiling girl ok they all use them so to tell us the way they buy i am but i'm looking at the the district court's order on page four and i see the same smiling girl so is there just a general lanham that claim here in terms of confusion no this is a copyright case but they do not have copyright and so they manufactured w case will typically had an image you know but if there is not a copyright claim here they have not raised a copper a claim that's not my question my because the copyright isn't under the lanham act my question is whether you know there's a general section forty three confusion detectability claim whether you call it trade dress or something else not for advertising like this an advertisement i think is their claim like that in this case they are making a section forty three a trade dress claim that's where it arises and right and so if you have i might not buy the dental crown because there's a nice young girl smiling but i might think that it's the same company if i see exactly the same ad i mean that's the question in that is that was then that way in fusion that's b s and chill confusion i'm not saying you would find these potential confusing but when they do it's pretty identical to the untrained eye that looks at photos so why wouldn't that be a claim that would have to go to a jury because once again trade dress does not encompass advertising never has there's no case that i'm aware of a no case that's ever been cited by the plaintiff the right court recognized trade dress rights in it's a retail establishment that is you know in trademark class forty one restaurant services that's the product that people see clicks billiards same thing a pool hall where they're looking at all the different things in the here whatever the sure so so wal mart stores the u s supreme court decision from two thousand and two said it must be a definite intangible thing such as a label or a wrapper container used in the packaging of a product it could be even the look of the product ok so that's the boundary of trade dress protection all the cases deal with just that containers wrappers the climbed bar the louis tahn bag the barbie doll and so on down the line these are all into the products or the packaging of the products at the lower court level the district court asked counsel do you have any case that establishes look and feel beyond those things and the answer was no there aren't there's there's been discussion about websites but that's not at issue in this case in the ninth circuit has never granted trade dress rights in web sites and they've not claimed it here so the the district court says we have faults advertising federal unfair competition that was my reference to section forty three a of the lanham act and so there is there a general unfair competition claim whether you call it trade dress or not the yes there would be a companion i think all their claims arise out of trade dress they said that at the lower court that this is a trade dress claim they're not making any other claims do you have a case that says if if you have excuse me somebody have a recording device that actually was my voice i heard echo on oh maybe there's just some odd by the m mean river do you have a case that suggests that something could not constitute trade dress because incorporated within the look and feel of the overall trade dress there may be other protectable copyright or trademark elements no no no case that i'm aware of and particularly not in an advertising context let me know i mean if if they if there legitimate trade dress and incorporated in there were either stock photos or copyrighted photos that wouldn't preclude determination of trade dress in your view well we've made the argument at the lower court that using third party copyrighted images under a license that says you cannot claim trademark rights in it would take that out of the equation not aware of a case on that point for so just the mere inclusion of copyrighted or trademark related items wouldn't preclude trade dress you're just saying in this case because of the licensing features if the product packaging has copyrighted images or the trademark that it but also like a reese's peanut butter cup it's orange and black and scalp a wrapper the word rhesus is a trademark that's not trade dress but the  else's ground so in the advertising context i don't believe there's distinguishing crowns everybody just uses pictures of smiling children because that's the ultimate market source those who matter well what i'm saying is that the advertisement the alleged trade dress is not a source of down a fire in the sense of wal mart and to pesos and the other trade dress code what is the same photo aren't why does your client use the same photo didn't know what online it's it's on a i stock photo site it was listed as the most popular picture of a girl they grab the same one purely incidental there's no evidence linking a cease and desist letter on that never and in fact it ran in a magazine and it was put on some different packaging but there was never a statement from when you say it was put on some different package or different crowds not zirconia that are at issue in the case but that was u not put the beach girl image on any packaging or the other alleged trade dress here i'm getting back to this this tapestry though i think it's an important point because we're trying to figure out the totality of the images and if there's other things in there in this case easy paedos claim a broad look and feel of its advertisements but if you look at the description of the dress the only elements that are claimed infringed are the common stock photos there's no other element if you look at the side by side of the two advertisements that's claimed infringed or claimed as part of the look and feel there were there's no copyright involved here could come you could not bring a copyright and that's typically what happens in advertising cases is you would hire a photographer take the image and then sue for copyright infringement not trade dress that's why there aren't any cases on trade dress an advertisement i cited in the materials but i believe there's a tobacco case r j reynolds for the marble man and the whole point there was not inherent distinctiveness it was secondary meaning in that that had run for years twenty years and everybody knew the marble man and so if you copied that i think you could make a trade dress case the distinction here is number one no secondary meaning which was claimed in the complaint not inherent distinct eness because to be protectable the traitorous has to be distinctive it's either inherently distinctive or it gets distinctiveness through through secondary meaning that's what happened in the marble man case here their claim in a nutshell is the moment we grabbed a nice stock photo image and put it in an ad we immediately had trade dress rights and so that when you did it the next month whether you knew it or not you infringed our trade dress that's not the law they they did not satisfy this is not an issue on appeal but they did not satisfy secondary meaning they had nothing to establish source identification in the market and so then they're left with inherent distinctiveness the law is clear what you need to show for inherent distinctiveness you must show that your trade dress your alleged trade dress is so unique that a buyer will rely on it to differentiate the source of the product from which it is associated it must be in the intrinsic nature that it serves particular source are you quoting from some of henri sorry that was from walmart the us supreme court there is no question that in this market hundreds of photographs of children are used there is no evidence that any particular photograph serves as a source indicator for any particular company and in fact my client maclin has used images that other companies have used all stock images it would never sue for trade or us we couldn't so is it part of the or the  show facts that would demonstrate that the alleged trade dress is so unique unusual unexpected that's from the morton case that it will automatically be perceived by customers as an indicator of origin you have to establish that they just say well it's a picture of a smiling girl it's inherent and currently distinctive that's not the law they must show and clearly articulate in this is what the court was getting to on defining their trade dress they have to clearly articulate what is so unique and unusual about your trade dress well one was a crown well they're selling problems that's not unique that's not original and i believe it's walmart that said the color this deep shade of unique blue color can never be inherently distinctive so that's out no question it's a crown it's the product that the sticker company with the yellow right right i mean has to be instantly associated in the minds of consumers will clearly not the case with beach girl clearly not the case with the crown and the watch engineered for it's a watch so what ours was macklin's were gears completely different slogans so you know this was a summary judgment case easy pito carried the burden of showing inherent distinctiveness that's the only issue on appeal by the way is whether or not these ads are inherently distinctive we submit they clearly aren't we submit that use of third party common stock images in short term isolated advertisements can never qualify for trade dress in this case should be dismissed thank you thank you so i'll just briefly address the argument that the appellee didn't know that it was copying the trade dress that's disingenuous your honour's that doesn't pass even common sense mustard looking at these images side by side and if you look at that permitted to claim trademark that is not in the that is not that evidence is not on the record below what happened was that council tried to bring agreements into the into the record below in evidence which i objected to saying we have no idea there this where it came from no one ever testified yes i agreed to this did you have evidence in their record as to the source of the photo yes they came from stock photography but not from from there is no evidence that they came from stock photography barring the use in trade dress and other than the photo what is the well the plane trade dress and the beach girl ad so in the beach girl beach girl trade  defined as in the defined in the complaint as this campaign was centered around a unique nonfunctional stock photograph of a curly haired girl on the beach in a white dress with magenta flowers with white tooth composites below dark it issue because if the trade dress is if the trade dress claim is dismissed the general unfair competition claim based on my understanding of the log will likely go with it under the lanham act based on the allegations of the complaint but  yes we have asserted let's see that's kind of different trade dress is one thing but to say that even though they have a right to go get that stock photo and buy it there may well be consumer confusion in advertising and that's just a general unfair competition claim on related to trade dress but it appears that's not an issue here so it's not an issue in this appeal to my knowledge i mean it's really the lanham act claim based on a dress and for an event which has been dismissed but i did want to address the wal mart case with the court's permission that that case is critically important to look at it's in fact based on where counsel has taken this it's the most important because in that case counsel has said that only essentially product packaging worse or products some tangible thing can constitute trade dress the supreme court of the united states in the wal mart versus some are both case said not so in fact in that case an opinion by justice scalia the court said well we look at the two pesos case and in fact of the holding the case was that that that particular in that particular case was that products can never be inherently descriptive so the product but something else can't be right so that the council there said well look at two places case the restaurant was the product that the and in fact counsel has just made the same argument that is not correct according the united states supreme court united states supreme court in that case said no no in the two places case the mexican restaurant the quid which is like project product packaging but it's not that which could constitute trade dress the supreme court of the united states has opened the door and said so you basically are saying we should take talking latin and have website web companies we have different types of of of companies showing their trade dress to the world in different forms and presenting it to their customers in different forms which are not always a product or product packaging and that's why the supreme court submitted well next here argument in us commodity futures trading commission versus the monads credit