next case on the calendar is car freshener corporation versus american covers and we have mr rove or back to me or the account defendants have never offered any explanation for why they came so close to a direct competitors but really trademark names the district court itself found that the product name  found there was sufficient evidence in the record for a reasonable jury to conclude that the d defendants adopted these product names in bad faith with the intent to confuse the email  of defendants internal communications would certainly support that conclusion by a jury with respect to midnight black eye storm the defendants told themselves that their intent was for customers to immediately make the connection now that's not important because infringement requires bad faith intent it does not even innocent infringement can be a violation of the atom act it's important because the defendants are the ones who pin their livelihoods on understanding the air for her market and therefore a jury is entitle to consider whether defendants were successful in their sel stated plan for customers to immediately make the connection whether it be a belief that these products were connected by source or sponsorship were prove all any of which would be a violation one the district court however concluded that defendants product packaging eliminated any such likelihood of confusion that was plainer there is no presumption in the law that the presence of a junior user is how smart or other differences in product packaging well obviate the likelihood of confusion where as here in junior user adopts a direct jury could conclude in your favor on that based upon the best go case that the trade if the trade dress is so dissimilar that it still can be decided on summary judgment so if you want to address the nabisco cas that was being challenged included the defendant's own house and in both cases the defendant's own house brand was undisputedly famous in nabisco the word mark being challenge was dense seeing ice and the parties were in agreement that then teen was a famous brand in and of itself inflate tax were art being challenged was quilted northern moist ones and there was no dispute that quilted northern was a famous house brand in and of itself here as the district court found the parties hotly contest the distinguishing power of the refresh your car logo that appeared on defendants product packaging with the infringing product names their st car logo is not part of the work mark being challenge but even considering it is distinguishing power is not undisputedly excepted as would be dense hien or quilted norther there was no market research there were no studies presented to the district court to show that refresh your car has any only situation where you could possibly find baber a defendant summary judgment would be if you had a famous helps mark that was in the name itself that essentially you could then determine that no consumer be confused because that defendants house yes your honor my client will breeze would certainly say that you can use their products outside of the automobile and i don't know whether dependence would say that as well but the market that we're talking about in this case is some confusion in the names and something tends to confuse factors that would operate your paper if i read the district court's opinion correctly what resulted in judgment against you was the district court's view of how the how the items looked when you looked at that and that here it based it not only on the difference between the prominent use of refreshed the brand label and little trees a very you know well known label for your product but also on the fact that for instance you've got the black ice name very prominently displayed they have their names less prominently displayed and almost always or indeed always divided so that it's midnight black on one line ice storm on a not there or midnight black you had one segment ice storm a not there and that back together with the difference in packaging i won't try to get into all of the particulars but yours with the brighter colors yellow red green there's with darker so colors you know black grey blue that no consumer was going to be confused given these differences am i right that that's the crux of the district court's view and if so why is that not one we would  would agree with i think you're correct that's the crux of it just records opinion your honor and the fundamental problem with that is that what you're just describing embodies a number of actual inferences on all these projects what you see your honor is undisputed now we state how he describes the market let's stick with that because that's what i understood the district court to have relied on that they are so different that district court suggested that no juror could find that there was a recent that it was there was likely confusion and your honor as this court stated in cadbury it's one thing for the facts to be undisputed but even if the facts are undisputed if a reasonable jury could draw a different factual inferences from those facts then this is not the realm of summary judgment and in this case a reasonable jury could disagree with the district court it was anguishing in what way what what would you how in the district court what would the jury be able to find from this that the differences that the district court looked at in the product packaging were not so distinguishing so that a consumer spending just seconds at a crowded retail display what suffer from no likelihood of confusion that is the factual inference and the factual conclusion that should be left for a reasonable jury in this case and that was the aggregate use you focus on the one factor and i can understand why you would do few minutes rebuttal mr brewster good morning bill brewster representing said defendant the lower court as it was required to do assess the similarity of the marks in context and based only on undisputed facts involving the product packaging properly granted summary judgment based on a litany of differences in packaging and presentation creating a distinctly different commercial pression that decision should be affirmed th court for pilate said that all right now so this is not a mechanical measure for the party but the greatest number of factors weighing it favor wins in fact that district court ruling is consistent with a long line of cases from this court holding the similar to the mark factor of the poll right now if this can be dispositive and will warrant summary judgment for the defendant if the marks are so dissimilar that no question the fact presented not only does the biscoe and playtex say that but this course rule that where the overall impression of the mark in the context in which the consumer sees it is so different that they cannot be confused as a matter of law the bottom line is why is that not an issue fact in this case the jury where the district court found that the jury could find that there was a strong market black ice is a strong market so then the question is do these differences in the trade dress the special what would otherwise be confusion consumer black ice more could be so strong that notwithstanding the differences in the mark similar goods all of the things that that all the other factors what what the district court is and what this court is set is appropriate is that when you compare a trademark entirety not black i made nice black and black ice at midnight black and ice storm when you compare this court to set it in korean a similarity doesn't end with a comparison of the marks themselves it would be error to compare only the marks the marks have to be compared in context with all of the other features so there is no use of midnight black ice storm that does not appear on a refresh your car package with a word little trees and red in the back and a green tree that says little trees in fact almost all of the products that are sold by plane that have a tree design on the front of it so what the district court is saying is in cases  which all of that is missing there is no way that in context consumers could confuse these two names in context it would be against error for a district court of pull out just the names and consider them which is why the used and promoted to be used in other other kinds of vehicles in homes some of the products coming cans which can be put under a chair so you are looking at are they market established is also something beyond dispute that the phrase black times is a phrase known in the english like it is your honor ok so now i'm going to put those facts together and ask you have we or any court ever said that summary judgment is allowable as to two products that compete primarily in the same market and use the same words whether or not preceded by another word or followed by another the word and those two words are a phrase recognizable by the public have we ever said a taste with those ingredients can go off on some re tell me you know about a case with one word that isn't exactly answer my question what gives me the factors we've just been over a few minutes ago well is correct in that sense i'm looking to say that we're talking about either ice or wet ones there are situations in which the overlap was a single word as opposed to but it  a single word as opposed to in those cases one word in the addition of one word in this case it's two words and the addition of two words i don't know that you're out of the fact that there are two words as post one word to make a difference in the way that the name the yellow distinctive background with the red and the green tree are all famous and those marks are known by the consuming public the c e o of yellow is what sells the product so if in the cases the previous cases one of the marks was had a famous label attached to it in this case your honor it could very well be that you would apply that to the fact that plaintiffs argue that everybody knows its product has that at that and th the absence that means that people know that it doesn't come from them or is not related to them they don't take the position that little tree has some separate significance to black i don't think they're conceding that they're what all tree mark little tree itself is so  or supposed to look at it in that it said gave it a different impression and i do think that there here are the court asked the question about what is the standard overview and  honor let's say there's a fact issue and that's what they said right so it was one of the careful when the don't don't tell me why it doesn't matter the question was did they use words to that effect what they said for instance the one pleasure i was words to that effect they either did or did your honor i would say that they used words to that effect but they were talking about the product and not the name for insist they said they want to nail this nail the scent is did they use words to the effect let's play with them yes they definitely did that your idea is that now if this case in spite of your fondest hopes were to get to a jury and i'm not saying it will but i'm asking you i thought that if it were to came back and they just the judge hears what we find we find both marks use the same words we find that those words that black ice has a strong mark as you've told us those that term means  we also find that the that's a thing of the defendant is of a very high order because of what we've read in the deposition and you've told us to w them all all but you didn't tell us what values to assign to them and indeed no appellate court that so if you want to know how we arrived at our verdict for the plaintiff we're telling you we thought the use of the two words being the same and the best face of the defendant was so strong that we are at we are weighing the polaroids factors in favor of the plaintive if we know will that from the jury would you  court on a number of occasions in my district course on a number of occasions to find that the similarity of them are arcs themselves in context as used with all the other elements that appear to a consumer that they're so different as  you said they don't look so different that if a jury could not find a likelihood of confusion was a probability and that's the score standard as summary judgment at jury trial and that can't be proven case did the defendant's challenge mark include the plaintiff's entire mar like it does here midnight black ice storm includes all of black ice in the biscoe the plains of smart was ice breakers and the defendant's mark was benteen ice if it had been dented in ice breakers perhaps it would have been a different case and in plate tax the plaintiff's mark was wet once and the defendant's mark was quilted northern more east ones it did not include the full mark what's another fundamental way in which each of those decisions was different from the case at barc is that there was no evidence of an intent to confuse in either of those cases in playtex this court specifically found that there was no evidence of a bad day on the part of the defendants and in the biscoe we know from the district court opinion that there was also no intent to confuse in that case the slippery slope that the district court opinion puts us on is that if a party like little trees has a successful train traps it cannot also protect its other successful marks from infringers of those marks unless the infringer goes ahead and copies the entire par product packaging as well as a counterfeit that is a result that is not supported by the lanham act we know the latter matt creates two separate causes of action one for infringement and one for counterfeiting the record here where you can when you consider all  is so successful in promoting their mark that it becomes generic ironically they lose protection it's that but that is still your honor and  consumers impression with their trade dress that they then lose the argument that the market is distinctive may be that on the facts of this case that isn't so but you are saying it just cannot be that the dominance of trade dress can make the similarity of marks irrelevant in any event i take your point thank you are all right thank you store back decision thank you to both of you