they please the court my name is gordon gray and i represent c w usa inc plaintiff pallant cross appellee in this case this district court erred by repeatedly drawing inferences against c w on genuine issues of fact and b managed for trial first the district court erred by repeatedly drawing inferences against z w on genuine issues of fact on the issue of likelihood of confusion first of these was the district court found that  if that is the case that this distinction authority the split of the florida shows that this is an issue of fact for the jury to determine what exactly to the house market do or not do and that was something in the spring that the district court inferred against improperly can't it can't be that just because there's case law that different that this is never proper for summary judgment and it i think in this case that this is never proper there cannot be likelihood of confusion that it mitigates confusion and that would be an inference again that's improper on summary judgment in this case it's there's case law that says that that causes confusion and that it is a handsome enhancers confusion i guess i didn't remember the district court saying because simply because of the house mark there's no confusion well it's one of a number of saying that the district court didn't analyze what role the house mark played in this confusion analysis and just simply said there is one next step correct and then on top of that even if there is any kind of analysis that goes on so the next point the next factor that the district court inferred against z w was the sight sound and meaning of the marks the district court said that one pole and one pole are two distinct auditory  of customers now the disc court said well there was no evidence that these customers made this decision to buy from that instead because they were confused that's not evidence that  present in fact the mishawaka rubber case specifically which is a supreme court case specifically says that that is the defendant's burden and not the plaintiffs burden to bring forth that type of evidence and that it's on the defendant to explain why this these consumers which also a substantial number of other facts regarding how the reputation or the quality of goods or price or some other reason besides confusion that you can't sort of just cut out that second step of conceptual strength simply because you found a valid trademark kenya for conceptual strength validity does case the way the court found that it was valid means that it conceptually strong what i mean by that is if the mark on the scope of this for example arbitrary in france will mark being the most strong and then merely descriptive with a secondary meaning being the lead being weak marks on the scope of valid marks that means that if a mark is merely descriptive but it has secondary meaning then it's a week mark and you then you consider the commercial strength secondary meaning what do consumers think of this mark out of the what kind of sales are there what kind of ads are there what do consumer testimony or or or or surveys say helder in this case the court found that it  was valid and not merely descriptive with a secondary meaning and so that means that it would be conceptually strong and then the court turned around and decided that it was conceptually weak is there is that case law that that's that's just true you say well if it's if it does reach the higher level of validity it's by definition concept loose stronger is that just your argument in this particular case i don't know of any case that says that when a market is  this case at a minimum found that when a mark is suggestive that it is then somehow conceptually weak there might be some kind of commercial weakness in the second part of the discussion but i don't know of any case that says th mark was commercially weak there was no testimony or evidence against what was presented by z w and it was undisputed regarding sales and advertising evidence in the case now the district there should have been some kind of comparison admin's or how much is in the market place or you know what is the impact mean and that kind of impact evidence is basically saying that circumstantial evidence is it is not enough in the heartland please the court i think it's important in this case to step back and look at this at a high level obviously a lot of the briefing deals with the likelihood of confusion factors but as your eyes will appreciate from our cross appeal there are also a number of validity issues that are being addressed as well and i think all of that should be put into context and i think the proper place to start for that context is a supreme court decision in the k p permanent case and i'd like to just read a an excerpt from that very  briefly it said the lanham act does not deprive commercial speakers of the ordinary utility of descriptive words if any confusion results that is a risk the plaintiff accepted when it decided to identify it product with a market that uses a well known descriptive phrase essentially what that means in this case is you can't adopt a mark that is very close to traditional english language and then assume that it has a broad scope of coverage such that you stop others in the industry from using the commercial phrase to describe their products now there are a number of mechanisms of the trademark law to enforce that policy we've identified a number of them in our briefing essentially they run the gamut from finding the claims to be either get a part of the mark to be either generic or descriptives in which case the marks are invalid because they describe a class of products or describe an intrinsic characteristic of the product both of which we contend exist here alternatively you can find that there was no actual trademark use here because using the phrase one poll to describe a product that can be dispensed with one pull is a descriptive use not a trademark use we're describing an intrinsic characteristic of a product we're not using it as a designator of source or origin and therefore it's not a trademark yes that would be an alternate ground for affirmative here because that would be essential a finding of not infringement of course the last way to come to this conclusion is to simply analyze the likelihood of confusion factors and determine that because of the type of mark because it's very close to general commercial language a descriptive term that has a narrow scope and therefore is not entitled to encompass use of that phrase in its in its normal use any one of those kind of plea of options available to this court to resolve this issue but but at its core fundamentally the issue here is you can't take a mark and use it to stop competitors in the industry from describing how their products work or what category or class that product falls into that's really what what is at issue here and as i've said there are a number of ways to free riders to bring that which one of these companies entered the market for z w enter the market first car they were there on market i don't have the exact timeline but but years before that my client p w d was in the market so what i'd like to do is have questions which i'm obviously happy to address is there any market research in that record to indicate how many competitors there are on the din of competition in this particular area there is no no market evidence of that kind i would say the only thing that touches on market evidence or could be considered market evidence would be the evidence that p w d entered in the summary judgment record regarding the number of participants in this market who use one poll to describe their various products there are a wide variety of companies that use one poll not in a trademark sense not to designate the origin or source of their goods but merely to describe the fact that when you pull a because of well for a number of foundational reasons but if we look at that evidence seems like there's a whole bunch of people looking at bag roles that they call him single paul one paul that's just what they're doing now you would have have us take as a proposition that somehow there is a distinctive difference between what bags or what they call wicket bags and roll bags would you agree with that or disagree with that as it relates to the structural makeup of the bag absolutely some of them come on a roll and some of them are on a hanger and such that when you pull one off you know the next one opens and avails itself like jokes that does not however provide any relevant distinction as a relates to the use of the phrase one pole in this descriptive sense to describe products both of those products structurally different in the way that they operate both provide the feature of one bag with one pole and this isn't some kind of a patent claim where we care about the structural difference what we're looking at here is the use of a mark that's exactly right your honor that's exactly right and i think your honor may recall from the briefing that there was a declaration submitted by a principal drawing distinctions between these various structural configurations and essentially trying to wave off this evidence and say you should ignore this evidence because it relates to a different type of structural bag but that misses the point the point of that evidence is that those in the industry those in this marketplace use the phrase one poll and it's descriptive sense at least to describe the characteristics of the products that they're selling that's what matters that's what matters now  we go a step further and we say that this is in addition to being descriptive it's also generic the reason it's generic is because just as your ericsson described the certain category as a roll bag so to the product be described as a one pull bag that is a that is and there is evidence in the record demonstrating that that is a category or class of products under the trademark law a generic phrase is one that describes a class or category of products and if you look at our briefing we have a number of examples of number one uses in that way join appendix one forty three one forty four provide  join appendix five fifty three through five fifty four describe the appellant's use but then we also identify competitor use and i hesitate to use the phrase could be due in appellate court but if you look at joint appendix three forty seven that's an example of competitors using one pull to describe a class of products there is a litany of case law saying those types of uses are generic uses one example it would be the american aloe corporation  circuit where the with the the word a l o was used to describe aloe products and that a yellow is determined to be generic because you can't use a word like oh to describe there's another whole litany of cases that say and it's shocking i cannot believe this case exists but that say you you can't take two words to foundational words that are in english language descriptive terms chop the last letter off and combine them to something magical and and if you look at the flavor court case that that example there dealt with a product that was a pest louer l u r e in that case the market owner took the second word talking about the validity stage stretch right so where did the district court in your view go wrong on that part of it i hesitate to say that carole jackson was wrong but but that but your that's what you're saying you're right you're right essentially i think the air that she made was to distinguish or discretized the question of validity from the question of infringement and if you look at her order you find that she she determined when when looking at the likelihood of confusion factors that one poll is a is a commonly used phrase that is descriptive in nature and she used that to narrow the scope of the trademark rights and there's a line of cases saying that that's perfectly appropriate that's one way to resolve the case but alternatively and i think possibly the more appropriate way to resolve the case is determine that for the same reasons as she described there with regard to likelihood of confusion infringement test so too does that demonstrate at least that this is a descriptive term if we find it's a descriptive term do after e mandate for secondary meaning analysis and judge jackson said that she had not conducted a secondary meaning analysis i believe the answer that is no your honor you're allowed to decide any issue that is before you based on the facts as they exist and there is record evidence regarding competitor use and that the parties use and at least a descriptive sense and therefore you'd be able to find in validity on that  basis so i've spoken briefly about last five minutes but i've spoken briefly about the generic nature of this term as well as the descriptive nature of this term one other thing i'd like to address is the non trademark use of this term that there simply isn't a trademark use here no need to get into a complicated likelihood of confusion factor analysis let's look at whether this mark is being used as a designator of origin or whether it's being used as a description of the intrinsic qualities of the product and in those cases those latter cases courts particularly the sixth circuit although there is a case here as well have found that you simply don't have to engage in likelihood of confusion the lanham act isn't even triggered because there is no trademark use and without any use in commerce of a trademark sense as a designation of origin there's simply no reason to proceed with a likelihood of confusion analysis there's no use of a mark to determine whether it's confusingly similar to and i believe that's a third basis that's an option a crown for a firm and here is to find that the use here and the use by the entire industry including p w d is in a descriptive sense the bag dispenses with one l l two words or one does not appear on our products we do not use it as a doesn't matter of source we use it just like the rest of the industry as a descriptor of the intrinsic characteristics of our product so with that i'm happy to address on that somehow the use of one pole stops the competitors from using commercial terms there are plenty of commercial terms of ailill to competitors to use besides my client's registered being industry evidence is only eighteen pages of documents those are six websites and of those six websites one of mark three of them referred a single poll and not one  and the others are broken down with roll bags and then well three or two are old bag three use the term single poll and the other one is his products so i don't record they use the term constantly throughout their website capitalized and in their own founders words capitalized and bold used to draw notice and that's exactly what a trademark is hors to draw the notice of a consumer so they buy the goods that said and then they use it along with the z w s own name zero ways they use that as a keyword to draw people to a google ad where the first words on the ad are one poll back so this is clearly a trademark use even though they're not marking their bags they're certainly using the trademark the registered trademark in their ads and on their website which is the main point of consumer contact once those bags are purchased by these municipal or other other institutions when they're being used by people to pick up after their dogs or pets i don't think anybody's from the examples that opposing counsel gave it's one poll without the extra and it's just a modification of two words by eliminating one of the letters how is this different than some of the cases that have said you know that's just not enough to give that trademark status well i think one is it's important understand the effect on consumers what's available to consumers and what's available to competitors to use and conflate and putting one pulled together and using the term is merely suggestive it doesn't say directly and the district court stated batted well in in her opinion that the consumer does not immediately know what the ingredient or what the product is by just sharing the term one poll in hindsight now you know we've discussed a number of times how these bags are used but manufacturers don't use that term many competitors don't use this term they calm wicket or head or bags or old bagley these all that bars other people from from using regular english language so in summation i believe there was a number of factual issues that the court improperly took from the jury and draw inf