by addressing the issue that the panel requested additional argument on which is essentially whether this court presently has jurisdiction to hear the appeal of the sequence of events here is that there was an entry of what i would refer to that mostly precautionary to ensure that there was going to be review of the case below noted of appeal now there are in my view and based on the entry of an order disposing of the last time tolling motion that's that's still outstanding and there is a time tolling motion outstanding from our motion for findings of fact the conclusions w notice of appeal ineffective until disposal of that that last motion there's also why call which this court noted in its requests for additional argument we're here prematurely and then the first point is the patterson case that was also cited by the panel and the key word in that in that case i think is suspense essentially the filing of a proper motion for u is a premature appeal that should be suspended until the district court rules on the still pending motion in front of the district court i think that that is probably one all resolution of this and i think that you know our side would have no objection to remain and but what we would suggest that for in the interest of the efficiency of this court it's fairly clear what was the district court's ruling if any on the role that this jury would play so specifically i looked through the record as best as i could and the only record evidence that i saw was a statement in the district court's judgment that referred to the rule in the rules of civil procedure and thirty nine on advisory juries did the district because they were no longer anything but equitable issues impaling a jury would be appropriate no no legal issues to consider and the judge's response to that was what we've already called the jury so we're going to go ahead and use them now that's capable of being interpreted in many different ways but so you do not recall and cannot point to any any written record that we that in the judgment as opposed to at the time i'm trying to figure out whether at the time the district judge made any ruling that this would be an advisory jury because presumably trial counsel would want to know what kind of a jury was being used was it being used as the decision maker or was it being used as an advisory jury such that questions that could be given as in iraq a tourist in the jury would be framed in a way of helping the district judge decide ultimately what are your you're saying are only equitable issues involved in the case to my mind there wasn't any question that we were proceeding with this isn't divisor jury i think it would be and error of law and certainly a even this effort by the plaintiffs to waive a jury and to proceed i guess only before the judge was for three or four days before the jury trial was scheduled to be isn't that a little like well no i don't think so because i think we're moving never excuse me removing matters that would be before the court at a trial and be done it in a point before the trucks just like if we care to dismiss this appeal we could have dismissed it this morning and it would be done we have to allow you to dismiss the appeal but we generally do allow people to dissipate that the point being i think that  you know regardless we had a trial and we seemed all to be in agreement that this was an advisory jury and you know the the wisdom of that choice i suppose might be open to question what our assessment of the evidence was going to show and we believe that we were entitled to an injunction and in our assessment we did not have evidence to support damages so we elected not to pursue damages so if we look at order the judgment that went down where he simply mentions that the matter came on for trial before a jury he talks about a jury impaneled and sworn and he goes through the process and then he talks about their other answers so even though your motion says it was pursuant to an advisory jury looking at the order there's nothing in there that says it cries of the jury so why wouldn't we just take the that judgment and the language there and and and proceed based on that that wording i mean i understand we still have  issue because there is that motion pending but why wouldn't the language of his order which simply talks about a jury that i know you say it's error because you only think an equitable relief yes well i i think cate that judgment and order the the judge to reconsider the issues as though it is a bench trial there's a well developed record and and you know to the extent that the judge intended that this be a jury trial  binding jury trial than that was erroneous and should be reversal of what relief what is the appropriate really a hue see it given where we are at this point considering all of the issues that you've outlined with the appropriate really we well i think from a jurisdictional sand point at this point the case needs to go back to the judge did back to the district judge in order to have the establishment of findings of fact and conclusions law i think we all can agree that this court's review of this case would be aided by determining by a determination of exactly why this case was decided as it was decided and frankly i think that  that takes that is there any chance this case may not come back up here that you will be able to settle it or that something will happen that will mean that we don't have an automatic appeal well i mean i can only state that my client would not appeal a favorable ruling obviously i don't know that settlement is a reasonable reasonably likely outcome i would take just a bit of issue here i don't think the dismissal of the appeal is appropriate because that would that would effectively end the appeal rather there is a notice of appeal that will become effective if this cases were manda do the district court and what we're asking for essentially is instructions to enter findings of fact and conclusions of law and i think that regardless of whether this was a jury trial or advisory jury with a bench  case is right for decision and we've analyzed it to a certain extent and i think we have an answer that is more satisfying to the fence and maybe to the court at this case in basically audience or is that the defendants don't have a proper rule fifty two motion rule fifty two b motion pending what they filed was styled as a request he was a one page cited rule fifty four one a say in th had to enter findings of fact inclusions of the law it didn't request any or it didn't provide any additional particularity regarding what was necessary for the court to do they didn't propose propose findings of fact if i got the numbers right it doesn't refer to a rule fifty to one a request right there is actually no such thing in the rules necessarily rule fifty two b is a request for amended fin as you mentioned earlier that there is if some point some bear findings of fact the plaintiff in fact this demonstrates how they treated this trial from the start i think is they buy that the fact that they didn't propose any jury was being used here and judge merritt i think pointed out a good point is that we were proceeding the defense was proceeding under the impression that there was going to be a jury tried those factual matters trademark infringement in many case many parts of it are mixed when your opponents were claiming damages as correct mix issue of law in fact after the time that there was a trial order that was issued a bought a month before the trial was held and that trial order was written with respect to a jury trial it instructed both sides to propose jury instructions in iraq the tories that they might want to do at that point still damages were being requested and  that's that's correct defendants file the trial brief they file propose jury instructions they file proposed in iraq the tories the the plaintiff on the other hand just before that was due to file disclaimer of damages and says we don't need a jury and they didn't provide any proposed jury instructions if it had been a bench trial only there'd be a different trial order the judge has those trial orders available as example and it says you have to submit propose findings of fact and conclusions of law was there any conference that's on the record where the district judge indicates now that the plaintiffs are not requesting damages what kind of a jury the district judge was going to be using i think i agree with mr harrington that i'm not certain that any conference was on the record whether there is a record of or not i wasn't aware i think it was a teleconference the judge said we've got a jury coming whether it's an vice or jury or a trier of fact we're going to use a jury that's my recollection of what he said is there i've looked so i'm i really i'm trying to have you all help me find something i've looked and cannot find anything on the record that indicates the judge saying explicitly this is an advisory jury and i'm going to follow rule thirty nine an advisory juries or not the first thing that i could find was in the judgment where the district judge does say in the judgment which this document one ten he said it's a jury of twelve was duly impaneled and sworn pursuant to federal civil procedure thirty nine c one and that is the something else here that explains more what's going on so i gree with you that i don't believe there's anything on the record never told the jury they were invited her jury he never said explicitly this is an advisory jury but he did say that you know that the jury has made this determination i accept their decision i took that acceptance of the decision has been on except the factual findings of the advisory jury mr harrington had stated all along that it was in a fact finding jury but certainly the judge has latitude to use advise or juries when the judge uses an advisory jury does not the judge have the duty under the federal rules of civil procedure to make findings of fact and conclusions of law i believe the seventh amendment jury right at agri with ok so the district judge didn't do that here i disagree with that point look at really did he do it the judge did what we asked him to do we swear his findings of fact conclusions of law there are seven pages a stipulated facts that were stipulated before the trial occurred and the findings of fact the only finding of fact he has on the record is that the defendants did not infringe th know ninety three or something the stipulations are what you both agree to still be written have any i guess the nother way of phrasing my question is is there any other issue that the district the jury which is great which is para so are you saying there are no other facts to find in this case it couldn't the defendants would and i should mention that the plaintiffs to file a lawsuit against one of the same defendants turtles put dory on facts that were in existence before the trial and before the first summer judgement was issued and you know women might be back here on  issues regarding that case so certainly specific findings of fact would have been useful to the defense we did not ask for any additional finds of fact problem prior to the trial and so in the case of a bench us because all took place so shortly before the scheduled yanna it would avoid the rebbe and do you think of the case to the district court and we could at it that's exactly the point i'm trying to make that the plaintiff has a responsibility in that the plaintiff decided not to exercise that right both be for the trial by proposing findings of fact and conclusions of law and after the trial when they filed a request for proposed findings of fact i don't you'll note in the record that the defendants didn't object to them requesting findings of fact but we didn't we didn't respond to the motion particularity regarding what relief they wanted now i understand and there's really no dispute that rules we looked up were seven regarding motions what requires to be a motion and you know that it's pretty liberally construed but in this case i think it's quite reasonable to look at that and say if you want to get a motion that the appeal then you should have called it a motion the labels matter it well not only does it not call number of her role and not labeling the document motion calling it request take this case out of all of the cases that your opponent has cited which you know we're we're bound to follow six circuit but you're saying this these two features the polling at fifty two a one instead of fifty two and calling it a request instead of motion mean that we're outside this case i 'm not that good of a lawyer to never make a mistake in labeling a law under the some parts of the of the rule but i think you can look at what the plaintiff's intention was if they intended it to be a motion it should have been a motion that had the parts of a motion which the local rules would require what relief to they want when i look at that request i don't see any specificity one findings of fact and conclusions of law that's pretty clear ok i understand but what proposed findings of fact you're right you didn't doesn't give what they basically did lay this on the judge's feet and say give us what we want or why shouldn't the judge have to respond to this request and say this is not a motion and you're not giving me specific findings of fact so i did not and then we wouldn't that we wouldn't have this issue at all i  come back to when we looked at patterson versus a understand it doesn't necessarily change the judgement there you can hear whether the judgment is manifestly against the weight of the of the evidence maybe the plaintiff is it has the right to have additional findings of fact which they should have asked for to begin with but it doesn't necessarily have to disturb a judgment which we believe that the plaintiff had the opportunity to argue why the ruling of the court was clearly erroneous there's plenty of evidence on the record in that and i think one of the most important aspects of this case which the the plaintiff sort of  glosses over is that as a matter of law there's a question about whether the acts they're complaining of and this is why i mentioned the stipulations of fact whether those stipulated facts could possibly be trademark infringement the judge gave an instruction on knowledge of fair use agave an instruction on first sale doctrine the plaintiff didn't object to those there was testimony about that we got from mr slap there is theories are argument on the part of the defendant just as a matter of law the court could have found no this is not trademark infringement under base star which is sought cited by the plaintiff simply using something which is not protected by copyright or patent with its name that originally had on it doesn't make it trademark infringement and i think in the end this plaintiff who has sued more than a thousand defendants on this exact issue we believe for those other defendants and defendants in the future additional finds of fact would be useful but it doesn't change the base that the the activity that the plaintiff it is complaining about is not against the law the jury found that they didn't show likelihood of confusion and the plaintiff didn't ask for more than what they got they wanted to get a fine of infringement they didn't get the funding or for injury i see my time is up  you as a trademark attorney when i think about the list of actions that casa to trademark infringement the one of the top of the list is making goods applying someone else's trademark to them and selling them which is what the defendants in this case  case all over you know right and i'm not i'm not interested in trying this case but this this case before us that under your submission is a case in equity right that is correct can and should apply all the principles of equity across the board i guess to the claims here before us on appeal i think you may be obliquely referring stop and waiver we may know the hands a lot of different equitable per good equitable doctrines and if it's an equity case before us yes those that panoply would be before us so i guess you would agree that we could apply those doctrines because it's now a case in equity before us i don't think that that fundamentally changes the nature of this courtroom view of the issue right now the issue is whether the court has jurisdiction over this case presently on the basis of our a on the basis of the fact that there isn't a pending motion and i would disagree or mr oakley we should get to the point that your opponent has raised which is twofold one is you didn't call it a motion and secondly if you called fifty two one instead of fifty two how do you respond to those two things making it not time most i think that our our purpose in filing that document was to remind the court of its obligations under rule fifty two a one to enter findings of fact in conclusions of law  i think if you look at the text of rule fifty two b there was some question in our mind whether we can even have the right to file a motion simply because that that rule refers to the it refers to the  additional findings and amended findings and we didn't have any findings to begin with so that's why we couch that that paper in terms of fifty to a one because we believe we're entitled to that now i  think that if there's a lesson in the in the civil procedure it is that they are to be construed liberal liberally in the interest of justice and mere technicalities on issues like this if if the judge thinks that additional findings of fact  could be found as a result of our quest of that than i think that qualifies as a rule fifty two b motion that that document has never been responded to do you have a duty under the federal rules or under the local rules to propose findings of fact in persons of law in a bench trial or in an advisory jury trial i find no authority for that and specifically there was nothing in the trial order requiring us to do that we would have been happy to submit proposals for and it's a fact and conclusions of law but i'm not in the habit of doing things that are not asked to by the judge that was that absence in the trial order because of the fact that it suddenly became a non damages case because if your decision just a few days before trial it's possible that that's that's why it was a minute from the trial arrived i think if in fact it's often isn't it probable because it is probably a trial there wouldn't be a requirement on that motion yet it's been fifteen months and such motion was decided and another motion another post judgment motion was ruled on relatively quickly i think the judge is not going to do it without instructions from this court to do so thank you