infringement claim that alleges the courier journal which is a newspaper somehow infringed plaintiff's mark by publishing news stories around the time of the kentucky derby concerning pastry  the courier journal does not produce pastries it does not sell the competing products the one that played produce and there is no conceivable basis for even finding an infringement claim in this  be just a court correctly held that under the law of this circuit a threshold test must be addressed before going to the park likelihood of confusion test that opposing counsel had discussed this morning and that threshold test the st amendment also bars this play the th circuit has recognized a st amendment defense in trademark infringement claim and here we're talking about news stories which are plainly entitled to st amendment protection then briefly begin by touching on the trademark use which we think was appropriately applied in that circuit the test is that if the defendant very only using a trigger in a non trademark way that is in a way that does not on this court held that we are banners advertising using that phrase they have been otherwise trademark welcome to the where they did not advertise any goods or services where they bakeries in the community they do not identify her institution is the source of any of those good expressively disclaimer that in fact can tell you who is the the source of the product pictured and they don't s any association whatsoever between the plaintiff in this case and the product being so short of the will of the circuit there is no trademark you and dismissals appropriate mr cox suggested this morning that the dismissal can never be use the court said that that could have been decided at at the pleading stage so the notion that if they somehow had to wait for summary judgment for him to take discovery is just simply incorrect we think that the district court correctly proceedings no your honor we don't think there are because again under this court's test whether whether the usage is trademark usage is a is a threshold question and if the plaintiff can't get over that trademark claim against it a less there is no relevance for the use of that protected speech in the work for the article in question or event or there is overt misrepresentations to the we submit respectfully that's just wrong that the press is in the text of the st and there's no basis for refusing to apply and establish st amendment defense to news coverage and in fact quite the opposite in  all manner of litigation raising st amendment defenses the supreme court and circuit courts have recognized the need for prompt resolution of the claims so as not to chill constitutionally protected speech and that's particularly true with newspapers and defamation cases for example courts have recognized you must if you can you should result in its earliest possible to prevent the chilling of constitutionally protected  plaintiff attacking here is not competing sales by the courier journal a product like their taxing news coverage of restaurants selling goods that they think are too close to their  they didn't sue the people that they believe are directly infringing the suit the newspapers are covering it then to judge settlers christians earlier i think it's extremely relevant we're talking about a news story the st story published on kentucky that but it's also not a trademark violation that the real core of the question is in a trademark infringement case if the defendant attempting to pass off someone else's product as its own or are we trying to trade profit off of the name of some other product that we didn't develop and if there's anything like that going on here i think it is plain to fencing to trade up the name of the kentucky derby to your owners question not any instance of a desert and the word derby is owned by the news coverage by the courier surrounding the event is some of the most read coverage of the year from locals and visitors alike and profiles of the food scene of parties of social events are widely read  so we can't be sued for using the word dirty when talking about a party that was held for some other charity event and similarly here wherever there's no reason the articles look at that there's no reasonable suggestion mean you're thinking of a theory about the case what it what is the they are protecting well your honor i will also disagree with mr cox on the notion that the trademark is unassailable in a prior case they came up with this court the trademark so we don't agree that this trademark is not saleable we do agree it's been registered but that may yet be an issue in this case but the point here your honor is if you look at the story but whatever is protected  remotely infringed by the news none of the story are attempting to portray a product as one that is sold by anything that is being that's not on the t v so even if hypothetically there were some infringement by those others that we don't believe or if we can you live for that secondarily that claim is gone it's gone like the dilution claim is gone like a advertisement as you said not addressed by the district court not referenced in the refund appeal those are no longer part of this case but even if they work the trademark statute your honor it is quite clear  a newspaper for the sole available remedy with the injunction against future advertisements of the so that's not on the table because they didn't appeal that issue has been waived but we're still not talking about a of competing products to make profit to be disgorged they are alleged a single person failed to buy their pipes because a recipe existed of pie from a different restaurant or because photographs existed of a back room so by another bakery in town there's there's no damage and really there's no right to get an injunction against a newspaper to prohibit the use of the word derby in close proximity to p in the future that would be an unconstitutional prior restraint that would be plainly not left so there's no legal theory on which they can proceed and at the end of the day there's no damages that they can get so we would encourage the court to uphold the trademark usage finding by the district court it was entirely correct it was appropriately done at the brussels is under the law cert it d but even if this court found so concerned with that there's plainly to dismiss is a cross appeal necessary to preserve alternative bases ease for the action of the judge but i don't think think it is it  art because the lack of a cross of light i don't i don't see the authority that you cited as a stablish in the cross appeal is necessary here and if you've got some better authority i guess i'd like to know what it is i don't have th as long as they said it was a current kitchen and i think that would be appropriate but we don't have that here we have somebody else's