could a question about what the actual situation with the trademark is now mr marsh trademark was cancelled not because of any violation of the rights of mr sheppard but authorized marcia act to use the trademark doesn't that put marsha back in the position of having superior rights to mr sheppard currently no one has the trademark mr mushtaq current does not i understand it does not have a trademark as it has a presently stand no one actually has has the valid trademark to the name the drifters so that goes back to the issue that we have this permanent injunction effect to protect cancelled but i've always been puzzled that we just have to inconsistent decisions right why do we sort of privilege the new jersey rd circuit decision over judge pollock's original decision in this case as marshak and shepherd judge pollak found that there was no fraud now there's an inconsistent finding in the rd circuit that's an unusual situation but i'm not sure it reflects that oh now we know that decisions the rd circuit or the district of new jersey and the southern district had this conflict what happened was once the decision was made by the district of new jersey and the firm by the rd circuit court of appeals the trademark office then took the additional  if that if that trademark right is been avoided by the patent trademark office because of his for it why what would continue to have an injunction in place that supports a trademark and was not only wrong and that's sort of the issue i mean the court below earth did not sort of giving according any significance to the fact that there was this finding by the rd circuit that then resulted in the patent and trademark office canceling the trademark if he doesn't have a trademark while we continue to have an injunction in place that not prejudiced by the delay here because he got to have his injunction for all his years and the only thing that will happen if the injunction is vacated is he loses a right that he hasn't had  shouldn't have had for all those intervening years after the trademark was cancelled is that absolutely on and and again you know that's exactly my point and the point is that i believe that if we just looking at the timing that really what eliminates the time on this issue because i think there isn't a fair argument under sixteen during that there was a th upon the court just like the case of teams will discipline course the case of hazel where the court found ok well i'm sorry honest i was well i had i was going to say it doesn't distinguish it from this case because listen to this the shepherd did make the argument a fraud at the trial he just didn't have the evidence at the time he wasn't in the just like in the he's will taste where there was a discussion and there was this there was a question of fraud it was there wasn't enough evidence at the time of the trial so it just wasn't there when it was later discovered that there was evidence to establish before egg versus take me where he again tried to perpetuate before there's a taste it's bubbling up to this court it's called moss adversity original drift and which again the issue of his fraud has come up time and time again this the more she has relied upon the more in going to the court and seeking the courts redress and ask and asking them to both of the problems of the problems i think that you have that you can correct me on this is that judge colonel also said your client  court actually raised the question which i think was a good one is what's the prejudice and why did he wait and fact is maybe there is no harm the problem is mr shepard who's been enjoying from this for thirty years in fact hasn't shown that he's harmed by the injunction remaining in place which is a final decision that they reached a long time ago and i point you to the employment agreement that he signed in  ninety nine and saying ok because new jersey jury found that this was a fraud fraudulent lead up taint no judge pollock's decision was wrong even though he litigated that very issue here and so by the way i'm entitled to use a name clench i did not take the decision the judge pollak or the decision of judge kozel to be based on a nine hundred and sixty six cunt tracht m i wrong in thinking that this injunction was based entirely on mr marsh ex ownership of a trademark it was yes it was based on the fact that the as between the two party at the time it found it mr marsh that had rights to use the  name and shopper did not and that was based on the trademark that's why he had the right that's correct you know so wouldn't you know i understand the rule sixty is a rather extraordinary remedy in most cases because in many cases what somebody coming back and doing and maybe there's an argument that mister the the plaintiff the defendant you know the movement is trying to reverse the factual findings or something like that of the district court but this is an equitable situation right this is an injunction and it would seem to me that it is not uncommon that a party can come back and say under changed circumstances we should revisit the injunction and see whether it's still just to apply it isn't that right way isn't that a perfectly reasonable thing to do even be la l and forget for the purpose of any argument about whether he committed a fraud on the court or on the patent and trademark office or anybody else he is the beneficiary of an injunction that is based on a trademark that has now been canceled why why should we continue to enjoin the movement from from using a mark based on that somebody else doesn't own that the person who wants to keep them from using it doesn't own at the end of the day anyway why white it isn't that just a no brainer it doesn't exist anymore i think this  preston's argument so why why should the court continue in force and injunction where circumstances have changed well again and that's a good question to the the issue is he's picking and choosing so somebody doesn't have the trademark this is still being litigated so we're really reopening the case to really getting rights between the two parties use of each other at this point you know trademarks not only based on you know being able to use being able to stop somebody not only based on a registered mark but also based on common law rights based on being able to have agreements and contract to use rights etc and what he's really doing is just picking the one decision that he wants to use from twenty years ago and saying as a result of that now i can i can vacate a prior decision without actually reestablishing who has the period rights is really trying to reopen the case and trying to do an end around mark but you've got to have that you can you can exercise your right to that mark independently of any registration that's correct and you can you can do with the base exactly the trademark registration is one aspect of of trademark rights if you can have rights of the contract you can have the right to be a licenses you can have lots of you can acquire rights through use it cetera and what you can't come back after thirty years and good case by just picking one decision and saying because of that one decision that i want to use now you have to give me all the relief that i couldn't get when i read when i actually litigated these issues thirty years ago reasons why we have time limits there's reasons why the courts impose time with us requirements and that is there's a balance here between finality of judgments and you know and and the time frames but this is a really long time to wait for doing this and it's a really long time to wait to say i should be able to to do this because i've been doing i've been violating this injunction all d along and now somebody is saying he wait a minute you know you shouldn't be doing that and i want to be able to violate this injunction or to to to do use these rights that i don't have and so i'm not going to go back to court i think that's a wrong headed argument and that's not the kind of you should be encouraging people to violate injunction and then when they get caught or when they've been doing that for a while come back and say oh by the way i believe this make it now know i mean i think i guess i want to focus a little bit i think judge caudle sort of addressed all the main issues and i just wanted to go back to what i've heard in this argument is essentially rehashing the isn't a fraud on the court case under sixty d the case law is very clear about like that in my brief and i stand by that but i think the you know there's no there's been no evidence and no argument really that judge total actually abused his discretion in the order down to the law he didn't make an error of law he cited the law correctly he didn't make any errors in factual findings there's nothing in permissible about what judge acquittal did and in fact he saw the case for what it was and i think for that reason this case should be of thank you counsel thank you  certainly two different courts came to a different conclusion but as a result of the district of new jersey making the decision the patent trademark office cancelled the trademark and i demanded a day that's the best issue if he doesn't have a  because it is based on forth then that that foundation the foundation of that decision crumbles and as a result of that decision crumbling the foundation issue also crumble this permanent injunction