java jazz the owner of the register trademark the name jaslene in connection with certain retail services that are provided in connection with a chain of coffee shops  this case this appeal presents a case of reverse confusion where the rights of that registered trademark owner were totally ignored by a larger new company the defendants in this case not withstanding the fact newcomer offered the exact same goods and  jazz land form a coffee company but still when people look at the two it always goes back to jazz land and that's the trademark and that is what the registered trademark is jazz like in connection with certain retail goods and services and any chance of ever looked in the phone book in new orleans to see if there are listings for anything called jazz band other than the amusement park well that's not in the record your honor there were there was some evidence of other uses of jazz land i got to is confused about what well this is i think presents a classic case of reverse confusion we have in really this appeal presents a couple of important issues for this court to resolve and that is whether a federal credit ra registration is going to have meaning when you have a small company where this is the first user in the first register the market and the subsequent large much larger company comes along and says look we're going to tell me supplant you in the market you serve your mark because we're bigger stronger we're going to offer more services than what you offer and therefore you know we're just going to trample on your rights but they only have to find counsel that you would have essentially been entitled to summary judgment before trial on all of the factors under sleep craft because i would be inclined to agree with you that you have a very strong mark and you have obviously the marks are similar there are a number almost identical but the jury had to find also that there was actual confusion and similarity of marketing channels and so forth and and we have to find in the procedural posture of this case that no reasonable jury could have found what this one did so that's sounds a lot like the summary judgment standard why why is there not at least a factual issue or a jury could have gone the other way well i would disagree that whether the standard come back to that even looking at it under that standard here i think no reasonable  jerking clue looking at all the factors all the evidence given the nature of the marks the services we're talking about again we've got to go back to the foundation we issue of what is our registered what does it cover it covers but retail services for its items is coffee coffee things drinks salads prepared foods items that is that those are the same exact retail services they were offered at the thing for now the thing par all right anyway going back to the question though so what we're talking about here begin in the seventies i think the only way the jury's verdict is explainable is the confusion that was caused by the admission of evidence of the louisiana that's getting the evidence there but i just want to before we go there if you're the you're saying that the similarities so overpowering and so i'll be fascinated that obviously there was confusion but but the jury my point is there's a factual there was a factual dispute a trial as to as to likelihood of confusion and and evidently the jury found against your client on  there who appeared he admitted that in the record we went over i read specifically here i had in front of me preventing and retail store services featuring ground holding coffee coffee drinks tea drinks fruit juices muffins pastries cookies pre and challenge that there's no contrary evidence and it's certainly reasonable that when he walks in with a jazz one hat and the jazz land logo shirt and starts talking about we'd like to set up a coffee shop here or sell you coffee or other services that we're offering the people's level or you from the theme park you know there's that now ok but i guess i'm still i just want to make sure i understand what you're what we're doing here you're seeing the evidence of similarity putting the confusion aside for a second the evidence of similarity was so strong exactly that we the jury and the district court and this panel should presume conclusively that there was confusion and that's the only explanation for the jury's verdict is the the admission of the louisiana registration not presume that there was confusion but i believe that as a matter of law there was on these set of facts which again are largely  matter of law there was infringement here and the only way to and hindsight perhaps we should move for summary judgment but the case with the trial and the verdict come back stock of all shocks no infringement and i think  to defense counsel's credit he did a masterful job of focusing the case and focusing the jury on in effect direct infringement and direct infringement standards and the thing all this is the thin really is the consumers who would be aware of jazz land think mark and there's substantial in number given the seven million plus that was spent on advertising but i think part national average housing by the way website  that phrase mark writes can only be obtained based on news because otherwise you're basically saying that it was ok for mr williams or in the years before the theme park ever became a reality in the times and dealing with government agencies trying to get hud loans or others to back this project in that limited promotional use of the name that those could somehow create rights to a trademark when there's been no actual use in connection with goods or services and especially not the goods and services that were eventually offered at the park and so that is that's the only reason why the louisiana registration was relevant to the issues a trial that is having a legal right to use the mark wasn't that evidence also potentially relevant to the issue of defendants in tampa selecting the mark and demonstrating that this was not an effort to copy the jazz landing was used by the coffee shops in california well i would disagree state of mind but isn't the act of going on at some earlier date one thousand nine hundred ninety one whatever it was and seeking a registration for that name well before that name is being used by coffee shops in california relevant to the question of defendant's intent because it pretty clearly demonstrates that defendants playing around with that name whether they use it enough to get legal rights or not before they could have heard anything about the name being used in california arizona well which you're talking about there's the earlier part the defendants in this case were on notice before they ever adopted and used the mark of our rights and in fact when they got an assignment from mr winter of those rights and then assignment he did not nor after guaranteeing that he had any rights and in fact his testimony was that there was no use of the marking connection with the goods and services previously knowing that no company could rely on that so in other words what you're talking about could be a possible relevance but that would be relevant only to mr winter state of mind i think we have to look at the state of mind in the activities in the intent of these defendants who were at the time they saw assigned on this project were immediately notified of my client's rights and federal registration in fact were aware of that because they ran their own training or search and and and decided to go forward that anyway even though mr winter told them he could not want to guarantee that he had any rights in that kind of context i don't think it's relevant but even if it was relevant and it was ok to let that evidence in i think the court should have given some limits an instruction  argue that that created priority and not just go to state of mind and it's in it's that i think is really the key the fact that they were able to argue look we have this registration we have priority because based on this earlier use any other than a limiting instruction that address that issue that is the the or rather instructions given by the court with regard to the validity of the louisiana registration and the rights that may have emanated from a no again we try to see if you tell me that you didn't  submission there may have been another reason that permitted admission and you don't seek a limiting instruction or instructions with regard to that field of law i'm not sure what error there is in front of us to consider at this point well  again i think if you go back to considering the evidence that even that evidence which this court would review de novo is if it's a legal issue that but it did this court can determine that even if that evidence comes in and is proper it still as a matter of law is not sufficient to create any rights in the predecessors to the defendants and therefore they had no prior rights to my twaddle but but i'm having a hard time understanding how that got a litigator before the district court you objected to the the admission of the registration process but there's if there is there anything i didn't see it in the issues presented on appeal that they were permitted to argue priority which is a different kettle of fish altogether what was done to preserve that issue and in the context of that argument couldn't the district court and shouldn't the district court had it been raised then formulated a limitation but that i didn't see that in the record well your honor we submitted a brief we not only made objections but we submitted a brief and that's that by and two of the excerpts of record  better to come back and say look we need some structure certainly but the way this place was litigated in court handle those issues want to hurry up bring the jury back and really cut off the argument things and really want to just let the jury hear everything  you know in the scheme of things looks like that might happen there's no there's no objection saying counsel kind of given the court's instructions given the court's decision and that the evidence to which we continue to have jack quinn on the last object to counsel arguing priority because he clearly didn't have it that's not there well it is in our brief that we presented to the court in connection with our jackson's exhibits of the registration and we asked the court to keep that evidence sure that he could go ahead and use the same though he also was out there using it he testified that all we did was then the report was on the joint exhibit list with no if you action we show the reports of the witnesses under on cross examination them to go to the page where it shows the state louisiana registration in the name of our predecessors and that's how be evidence came in and it was it was not you know once the court decided i'll wait and see what happens in fact the plaintiff put that evidence in we then have the right to go to continue to use that evidence we did not make a big issue of priority i think that was a part of the instructions though there was an issue about where and when you use a another reason that was relevant it also became relevant because of the again the plaintiffs on have and having proffered that evidence to begin with they did a trademark search if he knew about the existence of a state trademark by somebody else in louisiana for a for an amusement park it was certainly conceivable that a jury could conclude if he wasn't worried about that when he went ahead and use jazz land for a coffee shop then he can't later complain that when the park is there that there is going to be confusion he did the search to avoid confusion he went ahead and with full knowledge that somebody had a state registration whether was legitimate or not was not the issue they had when they were thinking about using it so i think that that really answers that judgment when you're talking about likelihood of confusion in the factors that go into determining likelihood of confusion that are very fact intensive there are a lot of things a jury can consider here it went to a jury a jury got a chance to consider those things  if there was no summary judgment they certainly didn't make one we didn't either went to a jury and the jury you know we he was characterized as being a shock the district court and certainly didn't think it was any kind of a shock  a number of facts you asked the question of what what facts were there that could support this jury's verdict there are a lot among other things a jury could look at those marks you saw some of them can look at them look at the differ as in the style in which the way they were used the jury heard evidence about the way in which the marks were actually used in context for example overwhelmingly the marks used were jazz bland coffee or jazz beverage products not marketed as jazz land hope or jazz land coal or anything else but in a coca cola glass or they showed coffee in a plain white paper wrapper there was even testimony from the president of jazz land but there was a specific reason for that because prior to the parts opening there'd been an accident in which a truck it crashed our or had an accident and spilled its contents all over the highway and it got moving made the news and everything the contents were a whole bunch of jazz land materials napkins and plates and stuff like that destined for the opening it decided it did not want to be involved in having its litter with its name all over anything and it stopped marking all of its material that way so there was plenty of evidence from which the jury could have included looking at the marks themselves if they weren't that strong they weren't that similar and they couldn't have been confused because people didn't even go in there and get a jazzman coffee cup of coffee or a from either location they just got a plain cup of coffee also can do with evidence that consumers had to pay as much as five bucks a cup of coffee i'm always mystified by the number of my friends and i've never bought stock and starbucks so i gotta believe it's sunday someone's going to realize you know it really isn't that much better than the free stuff i get at home but these are people who are spending a lot of money on coffee five bucks a day for some of these things and people who are going into jazz land amusement park are paying on the order of thirty bucks or somethin to get into the park and we're going there for the coffee they were paying a lot of money they work exercising considerable care certainly the jury could have reached that conclusion a reasonable jury acquitted seen as a factor weighing in his favor orleans on a second hand basis that he said he said certain things first of all even if you believe what he said he was quickly able to explain there was a difference and people were then willing to do business with them it was no big deal at all but you also have to  present talks to in order to dispute his claims while he's got it the other way around the plaintiff didn't bring in any habitants from those people he claimed to talk to he could have done that they claim well we had declarations will they try to get the declarations in  pretrial in the court said i can't have declarations from people take their depositions or do something blows that never happened there was no subpoena power they couldn't get they didn't bring in those people they could as the jury could certainly have inferred from that then mr wharton was making all that stuff up marketing channels were very different there's no zero evidence in the record that there was a national nationwide or worldwide advertising of jazz when other than the fact it did have a website but we all know that having a website and being available to the world does not mean for example you're doing business in all of those parts of the world but actually and the market channels which were vastly different the evidence in the record that the jury could rely on was that basically  they have rights to use the market in a museum park and reason to believe that reasonable people who went to the amusement park and bar coffee there would not think there was some association with a coffee shop in northern california more enough and particularly given what i think is really the standard of review here and we haven't there were no good questions from the core about that but i think it's a pretty interesting issue for him and i would like to address it briefly i believe that the standard here is not whether there was substantial evidence to support the verdict but when there is any evidence at all support it and the reason for that is that i don't believe that it is that there was a waiver  by the defense of its argument that the fifty b n motion that the plaintiffs made at after the jury returned its verdict was unsupported by a fifty eight motion first of all there's no dispute there was no rule fifty a motion that's undisputed and that made by the plaintiffs they did not make that motion they claimed that first of all it would have been futile to do so based upon the extensive argument the rule fifty a motion has a very distinct purpose it is to put the party opposing that motion against whom that motion is asserted on notice of anything useful deficiency in its evidence or something that could lead to a conclusion of the matter of law against it and whether the court knows that's was fine thing or whether it does it in reaction to a motion by the other side there has to be very specific grounds for the motion then their purpose is to give notice to the other party so that the other party then has an opportunity to hear that's what fifty eight is all about that didn't happen here saying it's futile still didn't give us the notice of a potential well i guess you read the record you didn't have a chance to can say a word the judge denies that motion now is that is that a waiver if i don't then have the senses which maybe i should've to say oh by the way your honor in addition to what you just said in the nine the motion i  stated for it in the grace case grace case follows a bunch of cases from an overall bunch of other circuits but if you look at those cases you'll see that in that for the most part alone some it's unclear but for the most part it's clear that it was a motion as a typical fifty of the motions filed on paper ten days after the verdict comes in combined with a new trial motion given the other side an opportunity to really respond and respond to the substance of the motion or to also respond on the fifty eight ground typically would do both just to cover yourself that didn't happen here now does it make a difference i think it does and the reason i think it does i think the policy that supports the waiver in the situation where the motion is made full notice is given and the other side is given an opportunity to respond to it is that it is that in essence if i filed a response or even if i had already responded to the motion and but that's not what happened here i don't that's a good policy reason for wait for a waiver that shows i made an affirmative decision you know what even if you'd given me that chance of giving notice of the races or fifty a motion there's not much i could not i don't have any other evidence i've also just left the court go through this whole long thing of rules of ruling on these facts without bringing that little procedural thing to its attention that's a waiver in my situation in vis case there was no opportunity at all and one of the first things i ever learned was when you when you shut up and you leave now you might ask me why i'm not doing a now but i'm not there yet but i sure as heck wasn't wouldn't want to have a rule that says  record doesn't even look at you and ask for a response if the district court just immediately denies that oral motion at fifty the time when he when he denies that it's you no chance at all to respond it shouldn't be incumbent on me to just make that make that one  and the fact that you threw in a case that was decided in the ninth circuit some years ago where i had not tried the case but put the case on appeal and learned then it is it is a for a pony and rule but you know it has a purpose and the purpose is that if you're going to test the sufficiency of the evidence after going through years of pretrial and everything else you ought to give the guy shot at known that that's going to happen and let him maybe have a chance to cure it by bringing in some other piece reasons for it and it requires you to give the party its a chance to respond we don't have that here and we didn't have an affirmative waiver on fifty of the because we were simply given the opportunity and i wasn't about to start putting anything else in that judge's mind when i just have jury come back i also don't think in this case it makes any difference because you have a jury that considered all the evidence there was no limitations on that evidence the evidence came in they got to consider all of this and practice factors they looked at the marks in the full context they saw and they simply were convinced that the plaintiffs had met its burden of factors are not exclusive no one is weight any more important than another any one factor could be enough this jury unlike the summary judgment cases this jury said looking at all of them high there's thomas quickly first on the procedural issue i think the key factor is that a motion under fifty b was heard considered by the court and therefore is now right for this court to review that and i do believe the standard would be the noble sufficien evidence of the so i don't think the issue really goes to waiver but because i think the compelling factor is that you don't want the appellate court dealing with sufficiency of the evidence issues that haven't been considered by the district court here we did have the in specifically in the opening argument at page one sixteen of the transcript it's december the first argued about the louisiana registration medium mediately after that out of the presence of the jury of jacket that presented to the court brief on the issue that this was important because if they showed they believed they had a mark well if you look at the record they filed the senate's filed an intent to use application for the jazz landmark as late as one nine hundred ninety eight a disneyland coffee shop i'm sure disneyland would be pretty upset about that or if someone had an earlier mart for best buy appliances and then suddenly the best buys change came into creation it doesn't matter that they may offer all these other goods in items that are different from best buy appliances the fact is they're going to supplant the store that first users marks and that's in effect what we have here the courts should reverse this verdict to preserve the right trademark owner in a federal market and show that reverse confusion is still alive and well in the circuit