would you please explain your fence advertising claim and why this is not the district cooler suggested really at heart a false association claim i mean why do know we're saying that that is is false advertising because it is literally false with no it's only literally false because you are saying it makes an association it can't get to falsity on that unless you take that step you just assume which is it people will believe it means us in other words it's a trademark infringement going dressed up as a false advertising claim because without that intermediate step there's no  cat into court and say it's a donkey this recourse not responsible for how you roll it what it's responsible for figuring out what's going on and the question is still in front of you how can you say that a statement  literally false with out the assumption that consumers are associating that with your parks it's that's essential to the assertion that it's false isn't it but i do  essential because because parks is parks so you're saying anybody any place who says parks means your sausage company well when they're talking about a similar   i'm a i'm still puzzled by it but assume assume you could you could do this there's a survey you put the survey out the survey  our claim and a one b and also a claim for trademark infringement right and so if you set up a survey which is designed to discuss likelihood of confusion but that is the  evidence how is it that you cannot be understood to be making it surely a trademark claim not a false advertising because it's also addressing an element that is under a false advertising  i think we can deal with it with it as a given that both of these marks are no you don't have to establish the validity of your mark or no i have to stablish we have to establish the validity of your mark having had the tree margaret just ration laps you have the responsibility of showing that a mark which is primarily a surname has a secondary meaning don't you for purposes of the trademark infringement absolutely yes well since for purposes of the false advertising in order to show even if we were to accept your assertion that that association can become an element of a false advertising lying in order to show that there's some association there you'd have to show that people had secondary meaning for your bar right for trademark infringement yest no stick with me but even if we were to accept your logic you'd still have to show that people in the hood park thought of your company in other words but there was secondary meaning right from the more confrontational yest i'm just i'm sorry i'm not communicating very well how can there be any survey say the response of the respondents said when shown the two package they are suggesting that a rough one people who took the survey believe that they are the same company were affiliated with each other how does that help you how does that support what i understand to be your theory of liability because for purposes of unfair advertising it shows that there is a portion of the public that are being deceived and that's the false advertising cla saw some statement that super baker might do some moderating is there anything that your company does the monitor the quality of these things well said he harish who is the owner one of the owners of  he's also i believe a number of super bakery there you know related companies it's his responsibility to test the products on a periodic basis and that's in the record and that's the record yes ok do you know actually shows that they don't monitor the quality but the quality of the product and time they look at the quality of the product is on after the fact basis after the call after the products been produced and every now and then they stop or that's what's that at the top in that we first learned of that registration which by that at that time this was in july of two thousand and thirteen at that point in time expired two years ago because the show evidence that anybody knew or was filed and someone p t o for your understanding is that your side merely brought this attention of exploration to the attention absolutely stuff that happened or absolutely one hundred percent that's what happened the p t s purpose for doing that was because you wanted to make sure the field was clear right the only reason you had any interest in it was because you thought but it's possible that maybe i don't i would know had been filed but it just hadn't made it had been filed two years earlier when it was due but it just hadn't been marked on the p t get the benefit of the presumption of the validity of market cetera but but if they've got secondary meaning they can demonstrate that they're they're moving toward the proof they have to carry right secondary meaning it's a question of fact  prove the plate it has to prove it in the geographic area in which the plaintiff contends that it has secondary really ok so in this case your honor they the plaintiff arrived that it secondary meaning in the quote unquote eastern united states which it defined as twenty five states and the district of columbia that's was its claim of secondary meaning so that said the district  thousand and fourteen in the eastern united states that says twenty five states twenty five states plus d c did a mark did the parts mark have secondary meaning the marketplace and the district court found improperly so they there was no virtually no evidence of any advertising they had approximately fourteen thousand dollars of advertising in a record hardly on an annual basis for approximately seven years  all over these places and we're struggling handbills we've got promotions that are not t v advertising but they are continually putting the name in front of the public is a legal basis for saying our you've got to be on television or you've got to be on radio in order to maintain your secondary meaning there are a couple things first of all just to make crystal clear when they said they were on the market was going to get to th salivation no evidence in this record that they were even souring the product or that they were using the mark in approximately eighty percent of their state i mean if you just look at that right there they have no use in their states they in eighty percent of theirs of those who are showing that they define eastern united states they have no advertising eighty percent of that the motion of the eastern united states that right there shows you as a matter of the law they they they may not have had to do advertising because the remark was already being sought in the marketplace but but in this case that's the whole dispute and that is the issue isn't it was there wasn't a genuine discrete the issue is did did that mark have secondary meaning in the market in that marketplace in two thousand and fourteen in the court and the court found that it did not and and to suggest that it shouldn't consider it  properly considered but the abject failure to come forward any or comfort only negligible advertising dollars it would conflict with a long line of cases from this court that that we need to consider the level of advertising it determining rather more or rather not have a mark a secondary meaning so absolutely the court properly found properly considered that their failure of not and i thought the questions that that were put to my friend i think that get right to the heart of the matter for them to show either false advertising and tra existence of the plaintiffs and more when that was the whole purpose of the exercise enough for the inquiry in the first place is to see to respond it's even know of the point of smart so a typical  secondary meaning survey is comes about when you ask who would you would ask you know do you associate parks sausage with one company or more than one company it's not showing people the plaintiff lingering confusion or lingering recognition and the pa and that's the problem there is no evidence record they could have gone out they can knew this was an issue from the very beginning when the district court denied their motion for plumbing john sure because you could not show that consumers associate parks with their product so they think they needed to go out and get a survey they need they need to go out and i'm sure the quote i was with your honor i believe that there were efforts that we are citing there is a commercial database that shows a market share by certain states and believes that word i think i have ever heard directed to me from judge ross there almost thirty years i have known her was one occasion when i said intending it in a jocular fashion that delaware was merely a suburb e case i'm not carping on that which is one eighty two f spirit one thirty three and it page one thirty nine record states that i wrote although evidence of advertisement  your point is and it's one that would be helpful if you spoke to mr lewis is that that's that's a case where there was a mark here in order to establish you even have a mark since you got the fifty one and just to give him an idea in holding on to some sure they say and to be helpful for you to respond to this you say it's been used but in fact in the record for the percent of the places where you claim market penetration you've got no to tell my friend when i say i'm next in the neighborhood that i heard this case talk about over some saucy i did mr harris knows very well who i'm talking into the fact that you grew up in the