filed the our position is that the velux had a perfect right to continue using its mark and had a right to defend itself in the case of the plaintiff move for s velux had a federal registration on the accused mark in the two in the suit case was the did the defendant have a valid mark greg just it which case was that registration was in class twenty eight just like the asserted registration united states government granted this registration to velux over over the registration of the plain of play yes later in time but what i'm focusing on now is whether you have a right to defend once a lawsuit is filed and not what might happen after trial in the case so what the judge found was it was bad faith to defend yourself and of course we don't have a time machine we can't forecast well a judge might cancel the registration so as if that trial date that registration was good standard for determining infringement namely a likelihood of confusion the examiner that the us p t o specifically found that there was no likelihood of confusion with any registered mark and that included t star state house versus long hard and the most important of which is whether or not there was actual confusion and there were two consumers who were actually confused ok my second point let me just back up a bit so we don't interpose time frames yes i would agree with the judge if he said after trial and after i cancel your registration if you continue after that and you're not acting in good faith but at the beginning of the case a judge had found out so though it was acting in good faith there should not have been a finding a willful infringement and therefore they should not a registration and those cases it's a they are a lot of cases that say the registration is not a shield but those cases go to the moving on to your honor's point about supposedly actual confusion what we have here are two ladies who had purchased the plaintiffs product they weren't confuse when we bought an outdoor swing set and when something was wrong with it they wound up with the telephone number of billets the defendant called that number and were immediately advised that no we make the pull up bar we don't make our door swing set so they weren't confused they were carrick's moreover the case was very clear that even if this were some kind of confusion it's not the kind of confusion that the was designed to curtail confusion the confusion under the lanham act so called actual confusion is where there's been a diversion of sales and there is certainly nothing like that here the ladies were not confused when they bought the product they knew the product that they bought they just they had a mis directed communication i think it's significant to look at two incidents over a period of time of what three oh you get to the number which i agree is small we get one case going one way and another going now to two such and cements of actual confusion but does seem to me these two in our case were consumers that were thinking about buying something to go along with the set where they now sir  with my clients pull up bar it's used inside you don't restrain it or anything the second lady had some boards missing during construction and so she wanted to get some of that some of this timber that she needed to have it put up she was not looking to buy any new stuff no it was she was looking to buy the tamba well she was looking to get the timber that she'd already bought there are parts missing in the  swing set if you're if if like me you have grandchildren you put it up in the backyard and sometimes you use a crane and several workers maybe over the course of several hours to put that up if you don't have all the boards you can't put it up so that was a second lady and no they weren't confused this is not a case of actual confusion this is a case of post purchase carelessness and a mere misdirected phone call but let's look at the numbers if we could to incident out of billions of hits on vel x s in from original just to where are the worthy incidence coming from play nation they presented nothing in the record that anyone called down looking for vel x not not a single whit so if you look at it even if you look at these as actual confusion it's certainly minute miniscule but i maintain this is not confusion this is carelessness so let me move on to point number three  that we've raised and that's whether a registration should be cancelled where the goods in the registration have not been enjoined the registration here is on a  the court cancel that registration but did not enjoin the use of the of the mark gorilla gym as used on the pull up bar but only on children's accessories so it struck me and on the cancellation of the registration you've referenced the gem bar if that's part of the system and some of the accessories are found to unfriend isn't using the mark on the system to close to to violating the injunction i don't think so i think that when the judge makes a decision not to enjoin the pull up bar which is what he did he himself and negated or declined to apply that doctrine or rule in other words if you look at the injunction it's very carefully there are two sections to it both sections each section directed to chosen successor those two are directed to children but the third one is not it says otherwise infringing upon play nation's gorilla place its mark seems to me that that is pretty broad well if it's that ilk well don't infringe as far as i'm concerned that that language is invalid you have to say what infringes and what does was a strong case of likelihood of confusion there was a seven factor test that is applied in this circuit and the district court found that on six of the seven and we would contend on seven of the seven a strong showing had been made is there a difference between consumer carelessness and consumer confusion well  test for trademark infringement is whether an ordinary reasonable and prudent consumer is likely to be confused and so well mr ward makes the argument that the two consumers that the district court relied upon term and that there was confusion there were actually careless and not confused they were careless in that this isn't a purchase case they thought they were purchasing  nation's products and they actually purchase velux as proper products they already had it and there were just call and or maintenance questions and so they were redirected and that's carelessness and not confusion which you response to that well first a fair reading of that the testimony shows that this is not carelessness that this was consumer confusion patricia children swinging in and playground equipment and she reached out and contacted them and her testimony was she says gorilla this gorilla that i thought they were a diversified company that is a reasonable conclusion for that consumer to make and his stuckey's testimony was similar when she was looking to get some missing pieces from the playground equipment that they bought but that's very important because it goes to the standard of review and the standard of review here is that where there are two equally plausible and we would contend they're not equally plausible but where there are two views of the evidence the district court's determination does not get overturned so this court would have to find that based on the testimony of these two witnesses that they were completely unbelievable and i don't think that this court can find that i don't think a fair review of the testimony shows that the plane nation had a very strong mark they've been in business for is the citation to it in the record is document one twenty two dash three at seventy one and if you review the commercials the commercials that the defendant was running talk about bringing the fun of the outdoors inside and indeed begins with the showing of an outdoor play set and encouraging consumers to buy it so the mark was used on the very similar market used on rings and those were interchangeable where you could take the defendant's track keys bars and rings and swings and then touch them to a gorilla playsets place at the the wrist similarity  trade channels the companies attended the same trade shows they both heavily do internet marketing there was the one area where the court  seven factors said that at the time the velux adopted the mark they did not intend to infringe on play nation's gorilla playsets more now we understand that that's the court finding and that's based on the fact that they did a search and they decided to use it they were not represented by counsel at the time and they say the court was very clear that was at the time of the initial adoption that they did not intend to infringe and i but that's again you now get into what worries me about your case and that they weren't good faith when they chose the the mark and in light of the fact that they actually got to market in a patent and trade office which means that the  very likely to be an abuse of discretion to your responder that well i'd like to make three points the first is the intent analysis and a likelihood of confusion analysis is not a one for one with regards to willfulness and so first at the moment of adoption of the mark based upon the district court's findings that the court found that there was no intent but the court found that there was willful at least beginning on april eleventh two thousand and fourteen when they were put on notice with the stats the data service that they were not allowed do they not have a right to litigate that haitian well they have a right to litigate but they also have to understand the respect and the that their decisions have consequences and the right to defend is different than the right to continue to infringe the district court found that this was a strong case of likelihood of confusion and so the patent trademark office issued the registration for the disclosed use of an exercise doorway jim bar they did not have before them on the four corners of the document a disclosure of children's playground equipment or playground equipment generally because play nations mark is for playground equipment general the district go did make a finding in that regard that might well you say that you mean by the next remark oh it did not say that the facts before me now a bear different from the facts before the patent and trademark office though the court did not do that but i don't think the court needs to do that because the the law is very clear that the registration can not be a shield and are not all of those cases that say the registration cannot be a shield are not all of those cases cases going to the issue of infringement they'll know and not to the issue ss and that and if that is true should not the district koa address that in the first abstinence i mean if we think that the district go to be used its discretion which we may or may not but if we think that because we relied solely on the continuation of the use we would then make a that but send it back for the district go it to conserve of that evidence but i don't think this court needs to your honor because i think seventh is already in the record and i and i don't think it's it's necessary to to dot that iron cross that city and let me tell you is that if the record that this is not just a continuation of the use that they were doing they leaned in that they embarked on an advertising campaign where they purchased google ad words these are trigger s that when people are doing searching on the internet to display products and they purchased a plethora of ad words that were guerilla playsets they purchased  my client's trademark they put purchased things like outdoor play sets swing sets and a variety of keywords and there is a long citation in the  the play nation have an opportunity to object as an operative as a general proposition with constructive notice considerations perhaps so but in reality play nation was unaware of this registration application and what it could have objected there's no i mean tell me how this works where you seek to register remark in there some sort of notice that goes out there there is only a publication in the federal register when you seek to register a remark some corporations may engage in monitoring and so while play nation is a a good and substantial business  apple computer and so it does not engaging in that type of monitoring but that type of monitoring is is not necessary otherwise there would never be any cancellation proceedings for that but there was a notice in the federal register not object if it had objected wouldn't that have been the registration of the mark whether or not they're entitled to it would not have been litigated before the patent and trademark board if play nation had  to do it at the patent and trademark court it could it could have equally decided to skip the patent and trademark mord and bring the action here because the use started prior to violation of the mark was world well willful goes to the defendant's condiment not to the plaintiff's conduct and so if this court being that the the district court had issued in a one of its findings that there was no intent at the time of adoption of the decision to the initial decision to use the mark the court found willfulness at least starting on april eleventh but case you had a registration for restaurant services and pizza you also had a later subsequent reza strafe for restaurant services namely a bagel restaurant and in the jensen case the bagel restaurant later decided it was going to add pizza to the menu and in that case the that would later use that later doing it whenever a lawsuit is filed against them challenging their mark are they supposed to stop production are they supposed to stop advertising you've mentioned leno and what have play nation is sued and its mark is challenge to well with that become willful then  if they lose the lawsuit it depends on the strength of the case your honor certain things can be considered a gray you know we are all trained in water school too to see great but sometimes there is black and white and as the district court expressed at least stated its order this is a strong case of likelihood of confusion in the us open faced doesn't the grayness come in because they have the mark to they went through in and got the registration when they got the registration but the rest of stray shit was for specious disclosure the registration was not was for something exercise and a fact that the district goat needs to about whether or not it was willful and we don't have those facts here is that not true these facts are in the record your honor of fact in the record is that when they started this company it was started for the express purpose of selling children swing sets that was not what was disclosed on the trademark application plaintiff and the defendant after this the service of the case there was no one on one communication with the president of the two companies but there was substantial communication between the parties and it does not go to will because as i've conceded if you're going to say that the at the time of the adoption they were innocent they were served with the suit and they they had a decision to make thank you very much your has asked another question for you before we got your your supplemental are already your opinions and the janssen case and the sterling case this morning and we have not had an opportunity to read them and one of the one nine hundred ninety four case and ones of two thousand and seven case where weren't these precedents cited in the briefs they were not opinions that were rendered after the briefs were not hopeful to the court when we get them on the morning of oral argument i understand your honor and this is there's a wide variety of books in the library and it just was these cases just did not come up in our westlaw searching and our other searching we thought they were particularly relevant and so under the rules and i did i didn't mention the sterling case but under the rules a strong case a strong case what does that mean that's not a finding of fact all that is is that is a statement of confidence that the district court was confident that in what he wrote it has no objective meaning and it we contend that it was not a strong case at all because it was found to point to errors of law in abuse of discretion  your honor is absolutely right that every mark every issue mark is published for opposition those of us who do patent trademark and copyright work for a living and focus on that stations weighing three thousand pounds and costing thousands of dollars has really very little in common with an indoor pullup bar to which accessories can beat attatched for a single station under supervision of the family inside the house costing maybe two hundred dollars there there's very little overlap in the goods council argues that they can be used t together or you could take them apart to sec them and hang them from each other but there's no evidence in the record that anyone has ever done that now as to these ladies i don't mean to be impolite but i must be candid with the court one lady testified that when she went to the website of course there websites everywhere and they're treated very casually by most people in our experience  website is in the record i challenge anyone to look at that del x's website and find play nation swing set know this lady was not only careless but forgetful thank you mr ward the court is going to give you a seven days after that today's date within which to file a letter no more than three pages responding to the south amount of forty thank you appreciate