away any standard that it was using to analyze the conduct at issue here clear and convincing evidence is required and the just or court never stated that it was using clear and convincing evidence and that by itself should  require a reversal so the district court can analyze this case on the proper standard nd the district court failed to consider the conduct of mental sports itself in terms of unclean hands and in fact to construe backs against middle jeans went on summary judgment it should have construed those facts in favor of metal chains and there's also should require reversal ringback finally the rd an independent reason for reversal guess at what standard review was used metal support has argued that you can infer it clear and convincing evidence was used but there's no way to do that under the record here there's the case as a district court sided  don't articulate clear and convincing evidence the district court never explained that it was using clear and convincing evidence and that's all the more problematic in a situation such as this where there's very  necessary finding of that intent and deception of public and none of that was done by clear and convincing evidence so for that reason alone the district court should be reversed and they should be remanded for the just requote to analyze the reviewing the facts and not on summary judgment the facts here really require just a court to have a trial on the issues here testimony resolve issues of credibility at that time when they just recorded here was a result those types of issues and that's not an issue to determine on clean hands well in summary judgment again the fact should have been construed in favor of mental genes and the facts here were the metals or told the trademark office in order to get its registration that it was trademark office that it wasn't going to use the register mark or those goods so that deception to the trademark office and to the public is metal sports own unclean hands which when the facts are taken in support of the of metal james as they should have been a summary judgment should at least create a tribal issue a fact that would that would require a trial and then the district court can have that trial and can determine which way itself came into the court with unclean hands the way it it used to mark the very market issue that was the subject of the case was a put the registration symbol with it and notify the public on its website and notify competitors that it had in fact mark a registered bar for jeans and shirts when it told the trademark office that it wasn't seeking such a market in fact when the free market has given its registration for powerlifting lifting apparel it if it restricted it and deleted those items so we believe that that shows that there was unclean hands on behalf of metals or and this shouldn't be allowed to take  advantage of the use of the hands of unclean hands in that situation so this is actually did you move for summary judgment on that on your side or are you just saying are you asking us to say that should be that  knocks out your unclean hands are you saying that that we should rule in your favor on that or that we should send it back for the judge to have to help out a problem the latter your honor we're saying that the case should be remanded we did not appeal  discrimination in the st instance so that's the nd reason that we believe that the matter should be sent back and remanded to the district court the rd reason is that the district court relied on different parts of conduct that we believe do not show about intent and also are not directly related to the case other instances where the district court looked at conduct leskie america which is not the plaintiff here in terms of the   in terms of looking at the fact that you have to have the conduct directly related related to the market issue in this case so we there's not evidence that is directly related to the market issue in this case even if you look at the  specific stuff with respect to metal genes with metal genes there's a there's a description of the product is being premium denim brands well the premium denim brand was was a number of reasons why the  to the market issue here and the continuance of the case on against metals for in addition the other piece of evidence that they looked at was the american or an american us primarily and was something that wasn't even part of the middle genes marking the situation so and there's no indication that just because a couple of the different goods what made america or that well i think it's the same evidence you're on i've been going through it's the these disparate pieces of conduct or the american made american warrant or the website information that it said metal jeans and own the trademark when it all well there is not a sufficient evidence for clear and convincing evidence but i think that going to your honest question the court looks like it applied a preponderance of the evidence standard when it puts together all these disparate pieces of evidence it relied on the inexorable conduct before the united states patent trademark office and connection in connection with the metal trademark that is at issue in this case and concluded including the determination that the  an appeal board that metal jeems principle committed fraud by either knowingly or with reckless disregard for the truth making false statements to the us p t o in connection with the trademark registration for the metal mark start with alan because i think your earlier said that he relied on did in this undisputed facts but the issue has to be whether or not what the reason for those statements were you know that leaving out the five years i think it was for shoes or something like that boots or maybe  boots for five years but it seems to me like you could draw several efforts from that when you could draw that they were lately trying to lie i guess but the other and as i point out in brief you could draw other inferences from that you can draw that that took some facts that could go one way and after after like a trial you you could you could conclude that but it didn't they didn't necessarily he seems like he took tracks and held him against the nonmoving part you a determination that that the statement submitted by mr top was going it was made either with knowledge that it was false or threat reckless disregard as to whether it was true that that's a judicial determination by administrative body i don't inadvertent wasn't a mistake it was made knowingly and with represents regard to the truth in a concert of fraud sufficient to invalidate the trademark registration they cancel their trademark registration based on fraud so i don't think there's any inferences that are being made there that's an undisputed fact that the trademark registration for the metal mark by the same principle that is the principle of the plaintiff in this case was cancelled due to fortune statements made by mr  a different company that you're it's the same principle but a different company crafters a different company but the current plaintiff in this case needs to rely upon the trademark rights of that fire company in order to establish priority in this fraud but those words are used by the district court in the decision that it was very innocent relied on the fact that mr top loose and the end of the record here is very very clear that there are a persistent pattern of false states penetrator us in connection with the application that became the registration that's an issue in this case but in any event the role of the other false statements counsel letter some and some more of those he submitted so what happened was the registration was cancelled in january of two thousand himself not someone else claiming that there was a contradiction but then he also stated in a st you must not he's not a lawyer no i understand are some contradictions i don't i don't but but the judge here the district court judge and metal metal genes in two thousand and nine and i assigned it to myself there's no reckon written record of an assignment there's no evidence of any written record so i thought he may have been he may have been incorrect about he may have been incorrect when he actually said he assigned it but again  but i think it out to be more than that for i mean i don't even i mean you're not i don't think you need more than that frankly but i think there is more than that here i think i look the other stuff in the in the in the that i looked at and it seemed to me like there's definitely inconsistency is i mean you get the impression that you've got a fairly unsophisticated and sophisticated party and not a lawyer and if they're saying you know the you know like on the on the denim thing says well we're not a denim brand because they're not just a denim brand either is lucky jeans only do denim but you w that lucky jeans is like a premium denim brand right so in some sense what both statements are true but they could also be it is a consistent that seems to be to kind of thing that you would not draw an inference against against them on you're out of there is such a persistent pattern here of inconsistent statements and false statements that no driver would could reasonably conclude that he was not either taking having a reckless disregard for the truth or knowingly making false statements both to that there's a person a rule that if the state if the standard of proof is not recited in the district court's decision that's reversible error that's simply not the law they they they cite to a bunch of cases for that proposition but those cases stand for the proposition that if they don't articulate the correct legal elements of the case and you can determine you can't determine what the basis for the district court's decision was and that can be reversible error here there's  and the court said there's no air even with the district court did not identify the standard of proof that it's applying and it's evident from a course decision that the correct it was applied so of the court can determine from reading the decision that the questioner was that's not reversible  in addition i want to address the alleged improprieties by metal sport first thing i want to raise is the fact that this argument that the are in the circle the registered trademark symbol  argument i made clear there are two arguments here on one is that a byte by deleting goods from the trademark application a false statement was made to the p t o that's argument number one argument number two is by using the register are symbol on the clothing that is a misrepresentation to the public that are that argument about the registered our symbol appearing on the quote was never rates below it is raised for the st time on appeal and absolutely waived the argument clothing and what happened was the trademark office denied refused registration based on metal jeems registration but in the response to the office action in a section entitled the goods are to a certain specialized for this activity in specifically that sentence both those sentences are referring to the amended goods there's no reference whatsoever to the goods that were deleted from the application since there was unclean hands and contrary to to to be equally names here there's no requirement of intent to deceive it's an equitable it's an equitable theory and the theory is that if they acted in bad s of the mark not being made on for a five year period of time and i think that just a court has to look at that and you're going to hear to would hear testimony about that not just look at the record and result and say that must have been a trying to do something wrong it would be easy for him as a business person there's not a trademark lawyer to not realize you should have deleted boots and not said it there's a number of items of clothing here that are being used in which the mark was still being used on and the situation just didn't happen they so boots in that five year period but that's hardly enough to say that you should have unclean hands for a different company in that situation so again if these