i'll see with my ten minutes of opening argument time i first plan to address the commission's erroneous legal finding of likelihood of confusion that i will dress procedural issues regarding the commission's unexplained denial below to arrive at a de novo finding i'm likely to confusion here all parties seem to agree that the court should consider the commission's factual findings regarding six factors any one of these factors may control a particular case and as i in the commission's decision is a is a little bit difficult to parse and it does say it does not weigh four but i believe we believe given that the least the commission on appeal noted that another factor  neutral their language that does not weigh for actually suggests against but it is part of our argument that that factor should go against and additionally that there should be an adverse inference bro because because of the lack i'm sort of i'm confused about what you are saying that the commission concluded that there was no evidence of actual can confusion correct and is your contention that that factor of instead of being neutral should employ it in your favor is that what you're saying that that's correct yeah and we but we but we believe that it does force for several reasons  one is that there was in this case and also as proven by the evidence present there was an opportunity to show actual confusion and that actually distinguishes a lot of a lot of the cases cited below and of course might have conducted a survey where were unclear whether or not they did it just wasn't submitted it wasn't a clear cut determination there was no actual confusion but the commission assessed the evidence presented and based on the evidence presented from both sides there no actual confusion was was found and there was no i think they found i mean actual fusion they found the evidence wasn't sufficient to show there is that in the commissions of hella brief on pages i believe thirty one and thirty two they do recite that this factor does not weigh towards a likely to confusion and they contrast that with another issue where they explicitly found is this is one of these cases one of these unusual cases why isn't what one thing that makes this case in usual is that the factor for relation in use and in commitment and commercial channels that was found finding that factor weighed towards likelihood of confusion and in particular the the midwestern case which is cited in the very in that quote where if it's recited that actual confusion is not necessary that that panel notes that the marketing channels factor went against the likely to confusion the other thing that i believe distinguishes this you don't disagree that action if that's not covered yes as a general principle it's not needed in cases where actual can for there where there exist opportunities for actual confusion actual confusion evidence what you understand as an opportunity so so a lot of the cases  that trademark wasn't in use that knew the new mark was not in real world use yet so there actually was no opportunity for real work and real world confusion and in that case the factor actual confusion is if there is no opportunity for actual confusion i want hand and on the other hand the marketing channels favor likelihood of confusion and that's fine if there's no actual confusion and likelihood of confusion can result this is different on both of those towns because one there was an opportunity to prove actual confusion or firm they were both in the market for one year but over a quarter million over a quarter million of  our clients products were sold in that one year and the segway the larger segway product had been in the market for for quite a while and the target turning towards and i really need to emphasize that market factor because although the names were similar and both were loosely related to transportation devices one of them was extraordinarily more expensive than the other one the segues product and it was marketed your motion to terminate and that it was nothing wrong with addressing the motion in that way it seems to me you were still are you in the  j did talk very briefly and once once the hearing was over with wouldn't it be fair to read that in the aisle of the motion is denying it because it was well i don't i don't think that that is proper your which means he must rule on it later and in such a ruling he must give some articulated reasoning the footnote where he denied it by default presumably without really any consideration it didn't even have that superficial recitation of  that the fall footnote has in many commission opinions if it did we might have a slightly different situation the other thing that's missing is an explanation of why the commission and the a l j chose one side over the other and what michael lieberman or the international trade commission first of all or you meant i'm just speaking for myself so use for us why is it the challenge to the jurisdiction is only with respect to the first portion of their argument the one that relates to the denial of the consent for that as for the challenging the merits of the exclusion we don't dispute that they have jurisdiction that's number one the way how they do it is like this they want first to address the issues relating to the denial of the motion for consent order before reaching the exclusion order before reaching the merits of the final determination they want it in the form of an id right right and then the can then there are thirty days the commission has that right so now what does that have to do with what we're talking about here that if it's done before the hearing the hearing that point although he said all the even though he has the power right to grant the request after the hearing is over why does the conclusion hearing moot the request the but we never conceded that is one of the facts so talking about so that was the reason why should the united and by the way he has the discretion to manage well maybe move this whole issue maybe move before us because it doesn't the differences from our standpoint it doesn't make much difference at all now talking about if i make that shift on the merits of the trademark infringement in addition to this issue  tell you is that it's not clear even if you all believe that there is no difference and there will not be arrested or caught of fact to upholding the itc's decision it's still not moved here because as i live judge coventry pointed out the orders are different as well ok we'll see what happens right so certainly i believe that there is strong evidence for example of actual confusion in the district court we will be able to prove actual future etc etc so it's hard to predict exactly how this will happen in the future but i do believe that this even if it doesn't seem like it has and they were had moved away from the from the swag way brad there is no nine months later on the eve of trials when we first get this consent or nine months after they've been using the swag after the investigation began and they flag way going forward and will destroy or in the courts are a tad very everything they said in the consent order they came in but they do have to show good cause and ordinarily when you have shown good cause that includes explaining why you why you brought the motion now why objection so if there's a hearsay made objection made during the trial and the judge denies the hearsay of the action and then if you're saying that that denial is brought to you it doesn't have to be an explanation on the record from the judge but why he denies every hearsay objection can still be brief because it's apparent from the context of what occurred and spared from the context what the basis of his ruling was i'd submit that the same thing is true here he explained on the record that because the motion came so late that he was going to have to conduct a hearing regardless of what he did on the motion now i can see that's not a full statement of and therefore you don't have to give cause for your motion he didn't say that part but i think apparent from the rule which requires good cause to consider it during or after the hearing and from the circumstances here which include this nine month delay when they knew all along knew full well that they were using this brand and it's apparent from the circumstances that i was the basis for his decision and then briefly on the trademark on the trademark issue i'd call your attention particularly to the hand beauty case that we cited in our brief somebody has the discretion  during or after the hearing and they don't provide specific reasons that would be used to deny it so for example just know many many provisions that must be complied with at typically when these are denied it's because one of those is not but you also don't typically have the situation where it's the eve of hearing and the motion come so late that it can't it can't move any part of the hearing it can't prevent the hearing from going forward normally this is very simple right it makes the hearing simpler it makes them less to be argued about at the hearing a shortened things up the state's resources but that's not what happened here ok mr rove thank you in the opinion that there is no rescue to effect what the commission had decided there but of course of this case court rules on it then i'll be extraordinarily persuasive on that issue but it's no longer obligated to do so  d also do i'd also like to our so note that in this case there are very unusual circumstances that evidence of actual confusion will surface if the marks at issue are really confusingly similar which power counsels that the actual confusion factor even if it's neutral should be given great weight because the interviewers here hired a surveyor reacher research expert and presumably to conduct a survey to this day they have not produced the survey and to this day arrears had not denied that a survey was in fact conducted and this especially when considered in light of the deficiencies of the other evidence that that the commission discussed on its opinion is far more than just a mere failure to offer survey evidence so i'm vs facts it is reasonable to infer that a survey was generated and that the undisclosed survey actually indicated a lot of actual