we proceed then to the day calendar and the first case scheduled for argument is number seventeen thirty nine eighty two international leisure products versus fun boy actually raises an important issue before the circuit basically the lower court denied i mean granted the motion to dismiss based on the articulation of the trade dress elements now as you know as in our briefs there's a number of elements that you must allege and plead in your complaint but the most important and fundamental of these issues is to define your trade dress elements if we if you don't if you can't do that then you really don't get to the other ones and that's exactly where the lower court decided the case and that's where the case stopped in our second amended complaint we provided an image of our design product and in one paragraph of the complaint in the next paragraph we described the elements that were portrayed to be within the image i have a question about your your description of the elements in your brief you took you seem to take the position that so long as the text correlates with the picture that that is enough to establish the particular elements of what you're trying to protect but the description the text will description included terms like  pleasing appearance or in this that proportion it seem particularly subjective and uncertain about what those would mean so i find it difficult to know exactly what you were trying to protect or what you see as the trade dress we talk about like the face or the knack or the body we're talking about the specific face neck or body that's in the image and we're trying to describe it in nonfunctional terms and one of the what is it that you describe that isn't just looks like a swan i mean what in particular about this one have you described that makes it different from all other swans well if you're talking about a swan it's not an anatomically correct swan if you're talking about fun voice one looks more like a swan than yours does it has a different kind of neck which is what is often called a spawns neck right whereas yours is a vertical neck and that is one thing that actually is somewhat specific and that one doesn't seem to be infringed i'm trying to get at what is it that other than inflatable swan thing is is in this description this is looks like a swan but it is not and i guess what we really mean is this is not an anatomically correct swan that's why it resembles a swan well right but something that of rubber is never going to be and atomically correct on depiction of some things one like or something that calls to mind the idea of a swan right but that can be done in a variety of different ways that look i think from each other that's correct and indeed you're saying also it's not necessarily a swan it could be a goose or eagle or flamingo two that is part of your distinctive we're pointing out our what we call our swan product so that's not maybe i misspoke a little bit infringement or to aim towards infringement claims with respect to those as well it is are you in fact aiming to show infringement as to other products thank you for your question your honor this is one of our main points we are  not a product line case we specifically and i can understand maybe a little bit of confusion but we have a product and we have identified the trade dress in paragraphs thirteen and fourteen of the complaint we have also stated that these elements are in other products that we have but we're not the serving as a product line and there's a distinction in how you analyze a product line case worse it's a specific product we're not asserting the packaging so you're saying that paragraphs thirteen and fourteen our intention was in drafting this complaint to show that to establish that this is our element that we have been using it we've been using it in other manners other than the the swan product  like in the packaging and this is not a packaging case and one of the reasons that this becomes important now is when we are for granted pleaded you know a motion to a man's and how can we amend this complaint to make this more clear we can take out the packaging we can make it clear this is not a park like wide case our position is that we have clearly and precisely articulated the trade dress elements of our swan product what would you say are the key unique elements or protectable elements combination of the elements as we describe that result into the image that we have we brought a confusion how could one be confused between your sworn in the form of voice one that's a really good question and that's an issue of back to be decided the defendant's moving papers in the lower court they said the issue was functionality as you said there were there was a complaint that we looked at and we found out that there was mistakes in that complaint and we filed an amended complaint as of right prior to even serving it then we go before the court and the defendant says well this is these are all functional so we said ok the court let us make this functional argument functional amendment which is the second amended complaint but there was no moved all the descriptions of functional elements and replaced them with this that well actually we took out language that was functional and left a lot of the other language in that was nonfunctional so we kind of expanded on that a little bit but we didn't take out we didn't replace the claims entirely and the make a motion to this court in an i reply brief we suggest and point out a few things that we can do to amend this complaint to make it more clear what the point very very much thank you yes i just have one question for us what in your will description and they said the image of itself is not enough to support the trade dress elements which is fine then they said the trade dress description of the elements is overly  well when you put them together that resolves that because now we can picture it you know i thought in response to judge perry's question we wanted to file an amended complaint that took out the functional aspects we did the second amended complaint so there's nothing in that one that's functional your view correct we have we could totally complete pleaded functionality in all respects so it's not even even aesthetic now and functionality we contend that we have made sufficient allegations such as the or it please the court my name is richard mills on the border with metroid carpenter and i represent the appellee fun boy as you heard this is not a packaging case but a product design case where the trade dress is alleged to be inherent in the design itself thus it fairly and squarely fits within the prescription of kaufman fisher versus f a o schwartz which was judge lynch's case where this court affirmed judge lynch's determination that in product design cases in order to demonstrate trade dress infringement under section forty three of the lanham act plaintiff must demonstrate that the trade dress is distinctive as to source the fundamental problem with plaintiff's pleading indeed its entire case is  penguin shaped cocktail shaker in wal mart stores versus ammara five twenty nine us two zero zero five the late justice said almost invariably even the most unusual product designs such as a cocktail shaker shaped like a penguin is not intended to identify the source but to render the product itself useful and appealing the removal of functionality from the first or second or third amended complaint was the removal of the label relating to functionality but in fact there are terms in there which relate to functionality it's a static functionality it's not just that plaintiff has not stated a viable cause of action despite three attempts it does not have one its claim is predicated entirely upon an attempt to corner the market on swung like products humans like to swat on the to float on swans and there is something in it ermes and mercury are depicted floating on swans numerous hindu gods are depicted floating on swans there is something about that design that appeals to human beings but that design is not the plaintiffs that design is gods or nature's and it is no different than the squirrel and leaf patterns in the knitwear case the swedish fish in the gummy candy case that's melka leaf versus promotion in motion the  whose alleged distinguishing features speak attire lee to it's an attractive no social features the looks like there's only two things in both one photographs that are functional one is you can fill it up with their sort of floats and the other is there's a place in the mill you can the feature of the trade dress that would that that would attract a consumer to it the beauty of it in this court in while this international versus silversmith there were baroque designs on on  silverware and this court said a static functionality the aesthetic function of those designs is to embellish and attraction moments because it's pretty you want to sell the product to someone who wants to buy it because it's pretty it's attractive that is a static function i would hope you use the product it doesn't it doesn't it isn't functional in the sense of operational so it's in the in the one of the innovations of the complaint they referred to the stiff necked thickness of the goose's neck that could be grabbed and held by someone that was floating on it well ok that that is a kind of a functionality but there are two types of functionality operational functionality aesthetic functionality and when you allege an element that's aesthetically functional you take your product out of the realm of protection under the limit you get past all the verbiage do you concede that if company your client put out a swan that looked exactly like theirs you would have a problem no no no your honor because even identical copying even identical copying knocking off dresses for example even identical copying does not establish protection of trade dress on the land that it might might not support a new york common law claim from just enrichment for example and nothing like their swan that's that's the real heart of the matter that is abs the problem the problem is we're looking for ways of defining how they're going to define their trade dress that we get past the pleading stage when what we all know is that you were just one does not look like there is one it's not an identical copy it's shaped differently it has a different kind of neck the face is a different kind of thing to the extent that there is one has some aesthetic attractiveness because of the way the paste face is colored matter of taste some people might like yours better some people might like there's better but anybody walking into a store and seeing the two of them if they saw that would say those are two different swans and would pick the one they liked and if some buyer for a store is only going to get one they're probably going to pick the one that they like and that's really what's going on here and we're sort of talking around this in an effort to avoid the fact that judges aren't supposed to make the kind of comments that i just made because that's what supposedly for a jury down the road somewhere but you know you know i think about appeals i think when one party gives you both pictures and the other one doesn't the one that gives you both pictures is probably right and i thank you for providing them well i appreciate that your honor that and i think you're entirely right this is that the distinctive features are supposed to be that this has a bird like countenance black eyes and orange baek a duck or oval or circular body something resembling when protrusions conical tail and i guess what you want to say is that a bird like face is not something that can be trained dressed because they can't monopolize things that look like birds exactly try to make  bird type toys without one of those elements it can't be done and if you can't do it then you impair the competition of of competing manufacturers and that is precisely what the lanham act is designed to prevent not to protect the monopoly on limited versus rockwell affirmed the twelve b six dismissal of a copyright infringement claim you both cite to the band or case eight thirty for that second at eleven forty five then if you do not give the court the opportunity that the court below the opportunity to arguments were made about the nature of its claims they then came back and filed another complaint the operative one here in which we are being criticized for  but the generic level of kind of bird float and subjective nature of some of the claims and saying this is not sufficient to support a trade dress claim nonetheless your opponent didn't have the benefit of the district court's opinion on that type of deficiency in its totally replied complaint before it was dismissed with prejudice why shouldn't have a chance now to repeat the problem is that was when it was pursed presented to my prior counsel who pointed out the defects in it and got a can in got it cleaned up and then it was then it was presented to the court and the court cited several problems with it i mean you can go on they presented it to the southern district of new york the same sort of complaint in a related case and the judge in the southern district judge poly said this doesn't allege functionality i mean how many bites of the apple do you get and problem isn't functionality the problem isn't pleading the problem is exactly what judge lynch said it is don't have a claim if they were to describe not a birdlike but were to describe this particular phase i think they might have a value trade dress funk claim because they'd say well the face that they have is pretty distinctive it has not just an orange be quick many birds have but this black band that's a rather wide black band above the  problem is if they described that as to something distinctive they'd run into the problem that yours has a very thin black line that's more of an outline they could describe the orange beak as being a little bit stubby but yours is kind of more pointy so that wouldn't work they could describe their eye as having a being a sort of black eye with a white pupil kind of interesting distinctive unusual design yours on the other hand is a white ball with a black p l they could say ah there is distinctive because it has no eyebrows whereas yours has an eyebrow so and with a kind of sexy sneer to that eyebrow that they could describe and did describe that their neck is vertical and goes at a certain angle the problem is yours doesn't go at that angle yours goes like this instead of like this they could describe the proportions of their float but yours look quite different one might say yours look more wing like the tail is very similar so you could describe all those things but they describe all those things they believe themselves out of court because they wouldn't be able to say that yours has any of those things that are truly distinctive about their design or their distinctive compared to the world of swans i don't know but as compared to yours if they were trying to say this is a very distinctive appearance the problem is all of things that make it distinctive yours don't have it's true summer is ending the giant swan is deflated the swimming pools will soon close and this case should be closed as well thank you mr mills mr  really shouldn't be doing there are products out there that we weren't you said you provided the picture in ok but we're talking about the functionality we're talking about other people writing on birds and swans there's no where is that that's not in any of the pleadings you can't take judicial notice of the history of western culture well i suppose you could do that but that's that's kind of like besides the point i'm trying to make and you're going beyond the pleading saying that ok if somebody goes into a store and see these things side by side then they can choose well that's actually not the case these are bought online where they are not side to side comparisons and that creates a huge confusion we can suppose submit evidence at this stage of how many calls we got from people's trying to order their swan from our website or from us so i mean there's actual confusion here as to functionality which is also very important there's a big mischaracterization of the sunny life case here and this case judge romans of the southern district found that we did adequately plead non functionality under the inwood test and the question was under the quality x aesthetic functionality case whether we also played it now that case is fully briefed and ready for this panel in a subsequent case and be happy to argue it there but we have contended that and we have that this is just not the stuff just not statically functional here we don't have we can plead it because we've shown that these elements and we pleaded are not necessarily for the product and for competition