the honorable the judges of the united states court of appeals for the forced circuit oh yea oh yeah oh yeah all persons having any manner or form of business before the honorable the united states court of appeals retailers concerning inexpensive grills and grilling excess release parties use different marks that is different or different follows in different sizes and incorporating different logo elegance and the only thing that you are seven coast is the it shows it's more to describe what its product is a backyard grill after three trials and no two appeals it remains undisputed that there's no as wal mart's decision to use its mark ever confused a single consumer in the real world wal mart sold hundreds of millions of products over a period of years and variety never identified a single confused consumer liability in a trade  or case turns on the likelihood of consumer confusion what better edits of the absence of a likelihood of consumer confusion could there be in the absence light but i think the jury to hear all of this variety offered only indirect evidence of commercial strength that itself missed the mark but beyond that the testimony on direct evidence of commercial strength was that  on the test for likelihood of confusion if those factors favor the ruddy is that enough or a jury define likelihood of confusion no your honor and the very and there was no evidence of actual intent or actual confusion that is this case so in those three cases this court affirmed so rejected prevented those facts aligned  under discords precedent the willfulness funny is also the separately subject to an end because the court error in failing to instruct the jury on the strip or which is required was there a specific jury was obligated to only find willfulness where the defendant intentionally attempts to confuse the public or intentionally attempts to but i don't know if i were you i'd be going to give up the proposition that not only not here i'm playing or do you want to be argued so i think that it's that it's here on harmless or reviewing that that was properly preserve analysis in any way it does in your honor because the courts as the court come it at that point was entirely conditional on whether the wall or submitted claimed were comparable licenses or whatever but as a matter of law and i'll get you to demonstrate that they were in fact comparable in the evidence was entirely one sided that those comparable so called comparable licen for national brands like general electric and better homes and gardens which the expert conceded were much more widely known the varieties more so there's no basis even if there w that would look to me like that would end the discussion just like if we in the on the st issue were to agree with you on the willfulness instruction that within that within the issues relating to the case otherwise we get in the reverse the judgment outright every basis for monetary recovery variety offer is purely theoretical there's no consumer confusion no hard to sales of that will and no basis for the massive order in this the mandate of the district court included this court's finding that five of the nine factors it considered were either waived by wal mart or were in varieties favor for the remaining four factors strengths similarity intent and actual confusion is indeed a question for that jury consisting of ordinary consumers and using the nine factors as a guide is well suited to evaluate close close now wal mart is back to tell the score of this opinion the mandate were all wrong at the same evidence that this court said created genuine issues of material fact were in fact when submitted to the jury so lacking that no reasonable jury could have credited it in arriving in its verdict of willful infringement to the contrary much more evidence supporting variety's position on the four remaining issues was presented to the jury that was before them was before this court on walmart's appeal from the district courts a summary judgment water that's typical registration and this court said in a slip opinion that it could quote support an intent to infringe it was a genuine disputed issue with wal mart visit other competitors even though it had no information that these competitors were using backyard on the other hand even though wal mart did know that a variety had a registration it's a no steps whatever to determine what if anything wal mart i mean variety may have been using its mark o and in another for a factor that came out that was the shifting testimony of one of the wall morris witnesses who initially said in an effort to divert attention from their knowledge of the rockies trademark usage initially said that there was another rd party user out there that was also using backyard barbecue when that didn't turn up the testimony shifted to the fact that there was a trademark registration that they had found and that didn't turn up oh actually confronted the witness who conceded that yes it actually potentially that was the term where that was used but tension at that party that they refer to as a rd party significant here is that and we made a point of this in our brief was a wal mart came back to the remedies trial with what we refer to as a duel of you know the war is even though d the court had already determined  testimony about what it was that we contended was willful and walmart use the term until they used the term willful they asked their witnesses over and over again in the context of these various the best that we've been discussing whether or not you point makes that point expressly but let's remember one thing the under under the law willful this is not required for an award of profits or damages and in fact in this case wal mart fared quite nicely the the jury for whatever reason concluded that they should keep eighty percent of the profits they made in other words they made about two hundred and fifty million dollars in profits in the jury allowed them to given regarding the substance or character of legal advice given to wal mart the fact finder could draw an inference in wal mart's favor that it follows counsel's advice and acted in good faith as a force or concluded or d the  particular case as i said there was there was a lot of evidence before the jury as to exactly what the parties meant when they were referring to intention tensional or willful evidence but i don't want to leave open market counsel's arguments about the away vote because under a rule fifty one wal mart had an obligation to raise that issue with the court and it never did the only thing wal mart ever did was submit two or three weeks before trial instructions there was no charge conference as such the judge came in with a set of instructions yes the parties to look him over and make any objections this is before the instruction of course and wal mart made a half a dozen different this trial where he said was if the parties agree i'm a consider a while and then an interlocutory reviewed that way you can go up on the issue of liability and if wal mart wins you don't have to come back if they do come back and we'll not a problem i don't think it is because as again the i don't know what dubois dear of been directed to this case was a non issue in a list a city north carolina there was absolutely no media coverage the courts have said repeatedly that sometimes when you want to do your a jury what you're all what you're doing is simply inviting them to go out and look for things they might not of thought of otherwise wal mart had already lost as you say ninety five million dollars verdict so their their strategy at this point was to come back and perhaps browbeat the jury into a situation where they could file a motion for a mistrial and that's really what they've done here they've asked the court to go back in and basically redo the whole thing over again without any evidence that there was any any media coverage or anything at all that would of resulted in a bias jury remember every one of the jurors in this case was a regular wal mart customer they had already concluded that wal mart was a willful infringer so it is hard to imagine what additional information there might have been that would have had any effect beyond what the jury already knew addition to the jury instruction the longer offer one word separately moved to strike testimony from varieties of general counsel concerning willfulness and for additional knowledge of varieties use that's insufficient as a matter of law there was nothing beyond that there was nothing demonstrating an intent to confuse the consumer and intent to fringe inten a free ride on price goodwill which itself would be nonsensical given their concession that there was no good well so there was insufficient evidence for funding in support of as the court noted a moment ago synergistic was one of the principal factors the defendant's willfulness and its infringement that colors everything in that the district or that the issue was abandoned and should not be considered in any remedies retries to the issue of the unfair competition clay is not one about emotion limited and whether that was the basis to raise it the issue is that variety didn't include that cleaning industry instructions didn't include it in its verdict for both of which were later in time than any other papers and they included that claim and after the liability trial they didn't ask for it verdict on that claim they did nothing so the liability made in granite has nothing to do regular it was weighed in the nature of how we came in the course of the proceedings is essentially irrelevant because the waiver  analysis and included that based on his editable judgment that the will of this finding is correct now on to the question of our emotion and windy and unfair competition claim wal mart move for j m a well twice on our unfair competition claim and it was denied twice been a turnaround of foul emotion lemony for to prevent admission of prejudicial evidence this was not a substitute for a j and that will motion it was no waiver by a variety it's case it's unfair competition case was in this case from the very beginning to the very dim and the problem with wal mart's argument is that consider whether under these circumstances the play of was entitle to an award of damages on the lanham act for it clearly was intitled to such an award punish common law claim of unfair competition and its claim of the north carolina's unfair trade practices a wal mart did not move in let me regarding that counts three and four of complaint which relate to common law trademark infringement or come along for competition so just as a federal law here there is no case law in a north carolina law that says blank home unfair competition the only look at the pattern jury instructions in the unfair competition instruction is basically one causation and there was several causation instructions in the jury  instructions on calls they show no reason for the judge to go further now we agree with you do you want the same jury brought back or do you want to  case only evidence they heard in the courtroom he told them that they take an oath to do that and after he finishes his dog stand that in according to the court reporter all the judges responded if i'm to so there's