acquired secondary meaning but overarching all of these questions your honour's is whether the district court was correct in ruling both as a matter of fact and as a matter of law that yellowfin sure line is both generic and to consider but he ask you something it seems like in this circuit we have not articulated what the standard is for showing that for what trade dresses for identifying how you have to demonstrate tra dress what what is your position is to enter test on judge order for the court to the miller hail house decision which was cited in our brief and i think that's the most recent and most thorough of the elements for traitorous and i prefer the court to the decision at seven o two and third which is a page to the beginning page thirteen twenty three in which the court  continued to adhere to the inherently distinctive test going back to the federal circuit's c protest and to address the question whether the trade dress is inherently distinct but and i understand that but i guess my question is how is that  test that we should that we should adopt for determining what that standard is i understand the question the i don't think any court has definitively defined inherently distinctive which is why it's always a question of fact what distinguishes this what gives it the secondary meaning and i think that's perhaps the best the best way to look at it in terms of trade dress that when you see certain size tail lights you know and judgment of the poet now if that isn't a description of inherently distinctive i don't know what it is poetry by its nature is not functional thank goodness so we answer of course questions best we can by looking to the evidence in this case and determining whether it is a fair question of fact that the out and psycho had the trial court said you did not provide the words to describe the shear line you said you you have what are the words that you've used to describe the share line side of the whole thing about of the stern in the twenty one and twenty foot twenty four foot models the shear line near the stern of the boat is different from the rest of the lot of boats and it doesn't sweep downward toward the waterline so the twenty want to twenty four but the boats don't share that small portion but the balance of th tutor but that description you just read doesn't that describe all share lines where is it different from others sweeping curve the shape of this sure line and i think that's where the district court and my opponents keep getting hung up all sure lines have a function call but they both have swept sure lines because bay boats go out of buffer water and you hire a higher bow and a lower stern two to both the fish but the designer chooses from thousands of potential sure lines to go for the actual inflection point and this is what the boating press describes it as the distinctive proud proud proud bow and dramatically sloping sure line from the proud bow stop to say to the swooping she ra yellowfin is unmistakable that was the evidence before the district court how would a trial court draft an injunction if the trial court had found in your favor how would it it would simply say a sweeping share line this surely there's a there's a drawing up so it would then you go back to the picture not work picture and the drawings there's a drawing of the sure line and you want to look at a brief there's a drawing of an overlay of the three using words it's using pictures to say this is what we're protecting your honor i guess it would be like trying to describe a tide box and words you can say certain things about it it's red it has the word tied it has some different colors everybody in jacksonville would know how can you knock on for five hundred yards away and that's what these as i read these that expressions in the in the magazines  you know yell for and when it's coming down the street judge i couldn't say any better well but i'm what i'm saying is he look at the picture and then you describe with reference to the only only thing for which we are seeking protection is the yellow fin surely and an injunction your honor would prohibit the crafted however perhaps with a drawing such as this would prohibit the use of our sure because that is what distinguishes our boats from any other and that's the whole point of inherent distinctiveness and the whole point of confusion sort of barker sells it for a thousand bucks cheaper i'm going to buy it from barker that's why we require that kind of protection thank you so what is the evidence of likelihood of confusion here the evidence is likely because fusion and post sale here it's but it's confusion and we have the exact same exact same sure that it was speaks for itself is that it's going to be entirely possible from a distance say five hundred feet to look at a barker boat and suspect that it's probably and that's evidence of actual confusion well i think in order for us to find it to be evidence of actual confusion we'd have to you would have to rely on what was what was sad right secondary meaning aspect and we look at it in terms of actual confusion bear in mind the only reason we lost in the district court on actual confusion is that the district court believed our share line is generic that's  a prevailed on summary judgment through secondary meaning that it it creates a unique aspect of the of the product why couldn't it be a combination of words and a picture for example in order to have a trade dress protection it's got to be it has to have secondary meaning that portion the share lied and what they've always been continuously said is well it's unique if you elephant and the evidence was it's not unique protection is whether it's functional but what about the evidence that's on their record that the trade magazines have suggested that as soon as you see this particular  again it talks about the crowd about the lifting back out the dramatic sweep at the end which is not claimed to be part of the trade dress so it's the overall look and function the boat at the articles talk about as to when that would go functional aspect of it the sweeping share the swooping share is a reference to what we call euro here at the end as it drops off toward the water can't you can't possibly know the article possibly mistake it for anything but a yellow phone then its distinctive proud bow and dramatically sloping share line right that it's the sloping clear line at the end of the bow which is not claimed to be part of the trade dress but before we ever get to and then and then a dent then the artist or the designer has a little wrinkle you you can just invented that and they're all functional right but it's the ornamental aspect of it so if it's functional and again ar apart well i can't speak to them but well i mean i don't why would they because there's a unique aspect of the yellowfin which is that sweeping euro well that's what they are given it's the you make aspect of the sherif know that that portion line has been contended to be not part of the trade for a school and just so i'm sure i'm understanding your argument are you talking about this model and i'm sorry it's probably hard to see but this model of the boat which is which has the line that goes across and then it drops down exactly and that drop down that you're talking about is not reflected in the share line that counsel for yellow friend showed us earlier this right correct and so you're saying that the part that's distinctive about the yellow fans is only appears on some boats and the boats that it appears on that is not a part of the share line that's the bow lower and stern is connected by a so why would your client tell the architect that take a look at the twenty four and then replicate it affected the jury could find that it would take that twenty four here it is and replicate it well i'm share line and then the question becomes whether it's unique well the question becomes whether it's functional when i understand that yes a share line is functional but also we've just agreed that it can have an artistic architect is instructed to take that share line that's the a functional part and the nonfunctional part but no because the architect wasn't instructed to take that swell let's suppose a juror could believe that copy that twenty four that that's the gist of the instructions that are ok and then the architect testified which is why he took it as a jury could infer that's why your client took the information from the employer with a there was no al took drawings well there's there are thirty and i may beat mistaken there's something on the evidence that he told the designer to look at take twenty for the i think the evidence supports that fact that the evidence was the twenty four looks to off shore and but the architect testified that the sheer light as he developed it was not what he told the architect right ok but the architect testified that the shear line line was identical to others he had made in the past where on summary judgment now we're having a disagreement about what it was that would go into the architect then i get back to the functional aspect we never get to that portion of it because two part test there's a traditional functionality that if it serves a functional purpose it's not tiled the protection and aesthetic functionality that if that's what the consumers are looking for to i'm familiar with all that counsel but if it's generic it to the world yes sir just like when a patent expires correct so the so the argument that it has to be described i think is is a share lines right all of them right of tech but there there goes a hopkins there goes if you're in jacksonville there's a hockey mask and if you put it in words what you're saying which we didn't have well the magazines put it in words in my view well and i respect and i point it and they point out that aspect of the of the boat and the article well and that's where where i'm so they have to draw an arbitrary line somewhere along the share line in order to try and match it up and what they can't are down to five is how their share line is any different than any other baby boat because functionally the baby books require the higher bout in the lower star and in the sweeping share line that creates a non tripping hazard and so the articles talk about this dramatic share line at the end it drops off that plaintiff is said let's not part of our trade dress and yet they want to rely upon that language to say well it's unique and had that been the case and said well that's the unique aesthetic portion of it we would still prevail because parker simply doesn't have that aspect i think i finally understand what their argument is for the first time today and this is the this is these are sure lives for mr nyquist declaration the thing the thing here the distinctive sure line his chosen from among these this is probably pretty close to to the elephant and you see there's nothing at the back of it and when we when we show the overlays for art and i understand you're saying i think what he's saying is that those articles that  rely on in talking about what makes a yellow offends profile or whatever you want to describe it as unique is its overall image or impression that it leaves which includes the but it says it in the context of a sentence if you read the whole sentence the talks about a line that includes something comes before and after this will been sheer right and some of the smaller boats don't have that this is a record one eleven dash ten read pages sixty seven you see the twenty one of the twenty four don't have that little drop at the back as they don't need it but you see the sheer now that i understand that but as i understand what he is and i'm not making a decision one way or the other but be great if you could respond to what i think what he's saying is that the articles that you are relying on to demonstrate the uniqueness of the share line don't go to just the sheer line because they're talking about the larger boats that have that drop off and you're talking about is sheer a line that is used in the smaller boats  depending on the size of the boat you don't you don't need that for the little boats but it's not just the articles you order it's investor negras declaration that the district court refused to consider on its own motion no argument from the other side that it shouldn't be considered a move mr nagger says i created the sure like to show that it's a yellow face and the sure line is what is reflected in the declaration but didn't he also testified during his deposition that the share line basically you know just was functional unconnected or that all that all with the r r baby sure line being copied here and there's that there's no conflict between the two the two bits of testimony at all and it's very much explained in the supplemental declaration that yes a sure line is be instantly recognizable out there on the water so some fellows out there an old boat and he sees the elephant go whizzing by with that sure line he's going to say i may go up one of those instead of mine but if it's a barker boat than the that's where the poso confusion