today international name in connection with his business and exploiting heavy equipment and computers in one thousand nine hundred one he then adopted and he's on computer corporation as part of a series of companies that he has and that was in the computer hundred eighty s they did obtain a trademark registration and an earlier date it was based upon a treaty where they had a registration in another country and based upon the treaty rights they obtained of the registration in the us they there is a recognition of licensing we are not in the old days of coca cola where it was not permitted to license trademarks and coca cola has a way around the non licensing provision i turned around and  said ok you can mix this with with the fizzy water but you you know we can't give you the formular we can't give you some other kind of mix in order to do that so what we have here is a mean obviously the other considerations i'd suggest that the example of what is more important here from the licensing standpoint is let's take for example the term united and if we assume that that is has acquired fame with respect pasadena for united man lines or that licensee with then be subject to you would be subject to being shut down by united airlines on the basis of dilution i would submit that that would and in in the corporate world a similar example which would also be i think quite untenable is in many corporate transactions when there is an acquisition of a company there is an acquisition of assets rather than an acquisition of stock does that mean that when there is an acquisition of assets that for dilution purposes all of a sudden the clock is starting over again i think would be a very dangerous path to suggest that the rights of the license nissan and the sun computer can continue using the mark there were a number of disputes with respect to the surveys now on the surveys there was certainly a number of contradictions there were in there was an expert question ultimately isn't just did they spend the money but what was the effect of that advertising did it go to advertise the brand nissan or was it just moving metal and going after particular models and advertising a model like with it which can be purchased in northern california we have peet's coffee i think they've started to come down here as well they can be purchased in your local coffee shop so that that is certainly a factor under the  factual issues go through to that as well as we were not given the opportunity at the little lower court when the judge changed his mind to go from one thousand nine hundred ninety ninety four to submit additional  clearly the evidence that we did submit below was focused on the ninety one and in your view when you add up all these factors what conclusion do they compel you to it if it compels to me and i believe it will compel to the jury that the concept like you would have an of the trademark laws such as attacking or anything like that if in fact this nissan used it in connection in a commercial way in connection with goods and services in one hundred eighty which is undisputed then that should be the  clash between prayed mark infringement and trademark allusion in that respect with regard to my client the internet center i'd like to touch quickly on the phone the finding of delusion with regard to the internet some delusion is intended to prevent someone from the consumer from the so seating in its mind a famous trademark with some good other than a good produced by the by the trademark holder and i believe that the finding of liability on my client loses sight o help org there are three there's a number of tabs up above one of them says how can you help you click there there are a number of options underneath one of the one of which is gears express your financial support or words like that you click there s in his mind a trademark with a with another site when you were four or five clicks away from the trademark each click of which tells you that you're not dealing with the trademark anymore all of the cases on which the court relied are have have one thing in common well several things in common one they all involve trademark confusion i e these were kids these were sites in which someone used the a delicate trademark and saying right problem is whether right i'd like to begin with the question that judge thomas asked of my account on the other side is the determination of the gate of fame a question of famous mark on a product that said it's it's a fact the factual question i would think whether it's sufficiently identical or nearly identical within the meaning of this court's test and fain for it to trigger  same marks in the same way and that's not what we have here with nissan computer corporation which creates a different commercial impression on the average reasonable consumer than with the single word nissan marked by itself can know something very different tells you this is for consumers in a way that nissan by itself doesn't and there aren't any examples in the legislative history or in the supreme court decision and mostly where they are talking about a famous mar lodged in with a competent mark and saying that vat is such use it's not necessarily the same thing so if we accept your argument why isn't that a factual question as to whether it's nine hundred ninety four ninety nine one a lot more you doesn't it also turns on the mark being different itself needs a computer corporation that concept mark creating a different overall impression on the average consumer than does need time itself this court has previously held  communications that movie buffs it's different from the movie buff movie score or that alpha it's different from alpha steel or alpha steel two and you take another example i mean which ford model t and take everything on faith even though there are boundaries expert declarations no your honor but what this court need not do is since we take generalized and nonspecific allegations of i think you'll have to agree yes judge driver but i cite that example because i'm not familiar with any other survey questions from ninety four ninety one that have problems with them that are that rise to such a level that we have to send this back for a trial related industries of import export business or a foreign car repair service as compared to a computer corporation and also the fact that an entity pointed out that there would be an issue objections to that that's waived if there are any first amendment concerns that the injunction gives rise to i don't think so for the reasons that we've already brief but basically it's because there are adequate alternative avenues of communication because the way to said the term such use could refer to any use by the defendant in commerce alternatively the reference to stock use could refer to the particular use being challenged in the litigation if the use of being challenged were limited to begin with you graphic area in which there  in commerce with respect to the use of nissan alone i would point out that there are a number of uses of nissan that are in different different style different sizes as compared to computer sometimes you have sonnen have a computer going up so high so they are it's not that it was always then some kind of sort of the boring bland script and that's the only way that that was there with respect to the factual dispute timing that's here i would point out that even as late as december of one thousand nine hundred the employees at nissan motor company and this is is in the record here in the briefs admitted that nissan is still confused with then with respect to the surveys judge reimer asked about the survey that with or talked about the survey that was resolved by judge prager said i would point out that number one the primary thrust of the issue on the survey that we had was a conflict of survey would be admissible but the weight of that survey certainly is something for the jury to take a look at and i would point out even in the recent days of the playboy enterprises versus next again when you have a survey that is criticised by an expert here that that is a jury question finally that hasn't been addressed by the mosley decision it is in the briefs i believe that if for no other reason certainly the issue of actual harm needs to be addressed