infringement of the interveners registered u s trademarks for moberg for parliament in virginia slims and specifically the reason for the infringement was because of that if you see founding material the complaint was filed therefore there was no possibility for it to have authorised and any we believe this approach is erroneous that the use of this they ignore is virtually all of the crucial events that occurred in this case and they all occurred prior to march twenty eighth two thousand  states but only for the year two thousand  this comes up in a strange way we need to see the following the consumer of this case as a habitual smoker who purchases cigarettes by the card this type of a smoker is pretty much dedicated smoker he knows this might hurt it you know what the difference with a label me to disperse it might make a difference the first times more but not to smoke that's one reason we don't think that applies as a material differences secondly good afternoon in may please the court all of the material facts in this case are disputing the commission correctly found that one hundred percent of all cigarettes authorized for u s commerce by pm usa are materially different from the a q cigarettes imported by all use foreign language labeling rather than a surgeon general's warning in violation of various federal laws established for the protection of consumers and us trade more holders we know the pm usa has never expressed any authorized the importation or sale of the  cigarettes legal protection we are on to the i c c a is pretty specific that the in order to import cigarettes it's got to a it's a interesting question your honor and it's primarily for the benefit of consumers but you know there's this scenario under under the trademark law which possible that pm usa wants to be known as a know i don't actually have a physical specimen but it's my understanding that these labels are plastered onto the front of the pack and that's how it goes into u s commerce right  mentioned a smoker who's used to seeing the surgeon general's warning on the cigarettes for forty years they buy packer now sisia and wonder whether or not pro morris usa has moved all its operations abroad or maybe now that these cigarettes actually come from pro abortion it's trying to put them in four languages where consumers can understand them any type of confusion here that they could could occur in the mind of a consumer his trademark is trademark infringement and the commission actually did make an alternative finding on that the commission found under the gray market framework that material differences exist for two primary reasons the congressional determination which the commission doesn't question congress his judgment on the  egg and also simply that consumers would be confused by that by seen the foreign language label on the front of the package in a language that it wouldn't understand where it's used to seeing these surgeon generals on the side of the ac say there was a correct the record actually shows in a sworn affidavit submitted by pm usa that the embassy sales ended in two thousand and six and extended between two thousand and three five years before the complaint was file and two thousand and six when they ended and in every year the sales never exceeded two hundreds of one percent as under any standard these sales are negligible and they do not impact the all or substantially  diplomats these are not u s consumers and actually the s c l a way recognizes this by not requiring the surgeon general's warning in cigarettes sold in u s embassies and foreign embassies in the united states i see in my times about expired and if you're honest i have no further questions i'll conclude my remarks this the labeling that is going to sort of in this case which is in english the u s surgeon general's warning which is required in peru in tremendous specificity by the federal cigarette labeling advertising that which doesn't just say you need to have a surgeon general's health warning on there it's as you must be an english it's got supplies the type size typeface the location on the back of cigarettes and it allows for no exceptions and no variation indeed the imported cigarette compliance act which has been discussed which i'll get to as well specifically incorporates the secular and requires that cigarettes imported to the united states helping to finance their market sales of truckers into the united states to the contrary philip morris usa has filed dozens of lawsuits against those who engage in great market sales he has sent hundreds of cease and desist letters to those who  letters to this very respondent and one to one supplier telling them that these sales are not authorized and we are going to see you if you keep doing this and that's exactly what happened so it's  sales they're still in the u s congress that's all that's required we're not required to show that the books a diplomat actually walk into u s territory and smoke a cigarette or not i think we can suss pretty well presume that that's not