all right we'll move to our second case this morning which is eli lilly versus carla foods case number seventeen twenty two fifty two around the globe from continuing its advertising campaign promoting arliss cheese products the movements i want to steer ochs while we have hello why have i directly challenge deference the judge respect gets in that because of the other two errors or are just complete failures of evidence on the part of the longo we think that those are sufficient independently to have the entire fully married injunction be vacated we don't think that they'll be able they definitely did not prove it at the hearing and we don't think they'll be able to prove it at trial so i think that's sufficient for us here to have the injunction vacated you little you know onco i'm sorry did i i just want to ask you one other sort of plus years has been clean natural products and so they are you know very into animal safety not using hormones in the production of foods that's sort of a signature trademark for them and so it's a bit of an attention grabbing device but they were trying to be very clear that they don't use r b s t to most consumers to purchase dairy products that is an important factor for them but that ad campaign did not simply make that point in a positive way it made that point by disparaging any dairy products that come from milk that comes from cows that were treated with this hormone that's the whole point of this ad campaign the point is not just to say we're pure it's to say those guys are impure and unhealthy and dangerous well they did i mean i think the voiceover when you see the shift at the twenty second mark in the voiceover comes in and makes it very clear what our b s t is are b s t is a hormone given to some cows not the cows that produce arlette cheese and so they're trying to be you know very factual there's no dispute that that statement is true that's just a complete factual statement it's informing the consumers to extent that they don't already know what our b s t is this is what it is and why does ninety percent of this ad campaign is disparaging any theory products that come from cows that are treated with the farm where they don't mention right they don't mention other dairy they don't mention demand that they don't want hormones used in the production of the milk so the consumers have spoken and they have it slowly gotten the producers to move away from using r v s t and milk the remaining r v s t milk from cows the district court made two serious unclear legal errors the in reaching its decision and entering the injunction first the district court found that the advertising was not literally falls and it found that it was not false by necessary implication it's not a district court made a factual finding that it was not literally false or false by necessary implication instead the court found only that it was potentially misleading but the district court failed to require a long go to present any evidence that consumers were actually misled and this court's jurisdiction absolutely crystal clear as is the jerk the jurisdiction and every other circuit court that has addressed this issue that you must present evidence of actual consumer confusion that has to be extrinsic evidence not just the district fatal to the preliminary injunction and issue here so actually what i read i'd love to say is that a full blown consumer survey is not required at the preliminary injunction phase but evidence of consumer confusion is required at the injunction face on the hot wax case that the district court cited in that both parties decided that the plaintiffs must demonstrate actual consumer confusion in the vila versus ribbon case in this court also if it court finds that a statement is only implied leave misleading they can do so only have presented with evidence of actual consumer confusion so it's not a subjective belief at the preliminary injunction phase slightly why isn't the regulatory guidance enough evidence at this face so that the regulatory guidance first is voluntary guidance second it says that a statement that produced without r b s t is potentially misleading if not placed in the proper context the proper context is the f d a disclaimer according to the early use the f fine print and the district court found that the claim that disclaimer was enough as a factual matter to take them out of the literal falsity and into this implied room right but that's a separate question of whether there is enough in the record to sustain the district court's finding of consumer confusion because the judge did rely on that same evidence that it's not literally false but it's misleading and the regulatory guidance is evidence of it's misleading nature it's evidence of protected but only on the misleading question of we're not talking about the misleading question anymore we're talking about consumer confusion right so it's potentially misleading that guidance says that it's potentially misleading right that is all part of the same inquiry that sure you're not but it's two parts one is that potentially misleading  there evidence of consumers actually being confused and there's no evidence that you're right that it seems to me that the federal and state governments  hormone so doesn't that go at least some of the way to showing actual confusion and to be perfectly honest i don't know how anyone would notice that guidance gets you some of the way to misleading it doesn't get you to actual evidence of consumer confusion and that's really the issue here the seventh circuit requires evidence of confusion the f d a never looked at our lives advertising the state of wisconsin never looked at our lives advertising and they never spoke to consumers and said are you confused by this or can you look at the commercial in the full context of the commercial which includes a disclaimer which includes a voiceover which explains what our b s t is and and that has you know the full context of that is someone actually confused that this is a monster and we don't know because our langkow didn't present any evidence if you also agreed to this it doesn't happen in at the from here in junction stage consumer surveys aren't necessary they're actually impossible to do because of the speed with which these lanham act or injunction need to be decided so the district court relied on the regulatory guidance that in the absence of a conspicuous  statement that there's nothing different between milk produced from treated cows and untreated cat was that there is the potential for consumers to be misled and in addition there is evidence  the record that a major cheese producer is no longer going to be sourcing its milk from cows that are treated with the normal because of or at least in part because of you advertisement campaign which was what thirty million dollar campaign something like that the full scope of it was to be now that it's been stopped it's really not all right but that's what was planned i mean this was a major push to dispar e competing for cheese products that are produced from treated countless so i think neither one of those two things and the district relied on two things find misleading and presumably a likelihood of success on confusion one is the district court just said given the message the advertisement conveys it's reasonable to conclude that consumers might be confused when the law is clear that you can't just substitute your own judgment in place of evidence and related right that the the judge was talking address the major cheese company i won't say their name but the issue is that there's a number of problems with that as being evidence of consumer confusion one they are not the targeted consumers and the test is whether or not the people to whom the advertising is targeted were confused this cheese company was not confused and right if that's not going to carry all the way to trial there must there's going to have to be much more robust and yelling at his trial be clear that the cheese company was not confused in any way and they didn't base their decision on some survey of consumers who are confused by that so they're not the target audience they weren't confused how can you be certain that have you had  bishop who was a long goes witness testified that in that the advertising was directed to retail cheese consumers not to cheese manufacturers not to dairy farmers and not to along those customers so we know we have an admission from a long ago on the record that the target audience is retail cheese consumers he said you know moms who watch the hallmark channel and bravo where this advertising was directed so the test that this court has decided is is there evidence that those people were confused in any way it doesn't have to be a full blown survey but you need something right well if i'm a church she's manufacturer is concerned that it's consumer base is going to be influenced by this ad campaign in the way it's going to change its business model to source its milk only from untreated dairy dairies that use untreated they have untreated cows then you know that it's not hard to connect those dots is that there's no evidence right i mean there's the question is what i mean then the consumers have to be confused they won't have a choice i suppose you're right but then again that's not evidence of consumer confusion that she's company is not confused in any way they know exactly what our g s t is they've been using it for decades what w the whole point of the thirty million dollar ad campaign if you didn't want to affect consumer behavior by her that not evidence at least at the moment or injunction it's not evidence of deception that's the question it's not evidence of deception of course they wanted to get their message  the idea of the cartoon was to grab the consumers attention the remainder of the commercials to explain what our g s t is and make it clear that our law doesn't serve us to because it's dangerous because they don't believe in it as a company it's a part of their philosophy on healthy it's on wholesome you should not feel good about feeding it with these products to your children i mean that they never said no one else i mean i think our lead in the judge was clear that our look and say you can feel good about feeding advertising was filed to find some consumer out there they said that they needed evidence that fifteen percent of the consumers were led into this decision they didn't find a single person i don't know they could have done focus groups they could presented like in the abbott labs case they could have presented anecdotal evidence of consumers who were confused anything they could have come forward with some evidence there's zero evidence in the record that a single consumer was confused and it is not for the district court judge and it's not for this court to substitute their judgment as to the messaging for an implied lee misleading claim in place of evidence there's no there's no case anywhere that would allow the court to do that preliminary injunction there are four factors that the district court is obliged to weigh one likelihood of success to irreparable injury to the moving party three the balance of hardships and for the public interest in the outcome of the dispute and law has only challenge the first finding there's been no payoff from any of the second third or fourth factors and then with respect to the first factor of likelihood of success we have this court's very clear jur but here's the actual language quote the threshold for demonstrating a likelihood of success on the merits is low in framing the probability of success necessary for a grant of injunctive relief we have said repeatedly that the pla but in that respect this average high seeing seems very much of a piece with a lot of advertising regarding all natural antibiotic free and organic products these days how is this material e different from the advertising that touts products that are all natural or thing greedy and you know with an eye for one camp or now your honor the actually the record in this case addresses that very question in his testimony at the preliminary injunction hearing a langkow as witness mr bishop explained that this particular ad or this ad campaign was different from anything that a langkow had ever seen in this industry in that it did not merely state as for example every pretty much every milk carton in america states somewhere are b s t free or made without cows treated with the r b o c hormone it shows to make that the focal point the centerpiece of an entire ad campaign dramatizing and depicting as a deadly monster that with razor sharp oren's and electric fur this hormone which has been repeatedly found by every global scientific body the top would be a reasonable consumer appreciate and this is just the type of puffery i mean do you think that a reasonable consumer really thinks this is some monster no and the district court found i think correctly that that a reasonable consumer would not think that our b s t is actually a monster but what a reasonable consumer would think and think the evidence clearly shows is that there is something dangerous or unsafe or an a hole somewhere certainly undesirable that you should be dubious or suspicious of about our b s t and i should say that when that commercial after twenty seconds of telling this monster story about how it's weird stuff and it's dangerous and deadly when it suddenly changes for the last ten seconds to the some lit room and happy announcer and the announcer says actually our b s t is an artificial hormone given to some cows that is in no way inconsistent with the idea that that hormone is not good for  explanation provided by our law why it shows of all the children who had interviewed who looks like a brother who can go out well if it were a political campaign they might get away with it because of the product clearly is and get away with it and perhaps they didn't expect that a langkow would would come after them but this was this is the family jewels for you lilly and a langkow it is one of their best selling products they have a lot they are the only prevail and they clearly have a lot at stake here and so just to it's i doubt if we had doubts about whether this advertising is misleading as  thought it was then would that be basis for us to say that some proof of factual confusion is necessary in this case and if it might not always be required for to sustain a preliminary injunction so so that the question the square question here is was the district court's fact finding that the ad campaign is likely to deceive consumers was that fact finding clearly erroneous and for it to be clearly erroneous there has that has to be that you know it's a it's a high standard obviously and the court cited a variety of types of evidence and i want to make one legal point it's very important there is no requirement in this court's jurisprudence or elsewhere that there be proof of actual consumer confusion even at the final trial stage certainly not at the preliminary injunction stage the the question is are consumers likely to be deceived or are likely to be confused by the advertising or the campaign and that can be measured or or evaluated through a variety of types of evidence one of which is proof of actual confusion in the marketplace which is actually very rare to come by surveys the types of zzz full of so called full blown surveys that the abbott case talked about in one thousand nine hundred two are not evidence of actual confusion they're evidence of likely confusion because these are consumers who are recruited you know to review an ad and give their opinions about what messages convey these are not consumers who are actually confused into making a purchase they didn't intend to or on a basis they didn't properly that consumers should prefer for intangible reasons no weird stuff the product made without using artificial hormones why is that  challenge at the preliminary injunction stage certainly the statement on our allies packaging that it's no there are no added hormones in the product if that's all they did is is state the fact that the product was made from cows that were not treated with r b s t we wouldn't have this lawsuit but that isn't what they did they dramatize the message through this imagery of a dangerous monster and made it the focal point of their campaign and that to that to the point about the disclaimer  as the district court found it's very small as as i believe your honor observed it's barely legible we're talking about watching a television screen on a crowded screen it goes by there's there's never been any challenge to our  that that disclaimer is not legible to the typical consumer and so my answer that is that does nothing whatsoever except serve in a way is it in mission that the advertiser knew all along that the message it was communicating was fal because the law is that you can't use a disclaimer to contradict what is otherwise a clear false message in a commercial so you can't say one thing and then say just kidding  consumer really would take away the message that our b s t is truly a monster what we content what we contended and we can still contend is that the monster is a metaphor for something that is dangerous or to be avoided or somehow something of which you should be dubious and you know that the intent here which by the way was never recorded at trial by any arlo witness is set forth and in the record there was no finding on this because i the judge respected think he needed to make a finding on intent but the there's a behind the scenes video in which the little girl whose strong was the inspiration said that she intended to show that it's very dangerous the press release in which it announced this this campaign the thirty million dollar campaign says that it's that our love wants people to understand that you can have quote better for you products that still taste great and this is one of them because it doesn't use our b s t as an ingredient or other weird stuff so there's a clear intention here and our lead did not present any live testimony at the preliminary injunction hearing it put a declaration from its chief executive who did not deny what we asserted in our moving papers which is that there is a clear and he said how he said it but he couldn't be at the hearing i'm sorry  is the little girl your average consumer who won't be confused no that's not the point the it's her mom was the average consumer but the the little girl girls and ten which was brought to life by our allies cartoon animators was to communicate that our b s t is quote very dangerous and that's exactly what they did if not her intent i understand that but arlo arlott arlette was telling her story chief executive or the marketing people's intent that matters and that is actually documented in video behind the scenes videos from the ad agency we ask id's because we knew that they had no idea and forget about what a boardroom full of marketing exacts will say let's at let's ask kids they won't mince words when being asked what they think these so called ingredients are even though they're not ingredients and your honor you know mr storer their c just just a voice call would have sufficed but i was denied that opportunity in any event we believe there was plenty plenty of evidence on which the for the district court to base its finding at this ad is likely to mislead not insubstantial portion of consumers and i haven't talked about the regulatory framework at but as it was noted both the f d a and the state of wisconsin have recognized that  ads like this that call louder or focus on the fact that a dairy product is derived from a cow that was not given are b s t that there's a tendency for advertising like that to to be deceptive and that an advertiser has to be careful and take steps not to mislead or consume confuse consumers when it does so and that is i think you know what this is not an idea that either or judge grease bought made up out of whole cloth that you can confuse or deceive consumers with ever ties in like this it's something that's been recognized by regulatory authorities there was were there were anecdotal reports in the six three we included a letter from agra pure which is one of the major dairy producers at milk aggregators sources milk from dairy farmers and then sells it on to people like the major cheese producer in question and it says right here quote we have recently been notified by a large customer that they will require the cheese that they buy from b r b s t free very soon and we have no choice th so there's no doubt that this happened the only issue is really the attribution of the decision by the major cheese producer to to this ad campaign at least in substantial part and on that score there was a business the testimony was that there was a business meeting and not attended by our witness mr bishop but by attended by people working for him and at that business meeting between representatives and the major cheese producers representatives it was shared with a langkow and then immediately reported in a business record memo up the chain including to mr bishop that this decision had been made and it was based in substantial part on our lives at campaign which was disparaging our p s t and as to whether that's that's evidence of injury it's also evidence of likely confusion of major cheese pretty like this one surely knows its customers and knows that when are when a technology like r b s t is under attack and being portrayed as somehow unsafe or undesirable its customers are going to look at that and choose other cheese products if if they're available and that's why it made the decision it didn't say i was doing it for economic reasons he said he was doing it because of concerns about public opinion which arlo's own expert witness  on a n submitted a declaration that in his research negative public opinion about r b s t is one of the main reasons why dairy farmers when they choose to want to quote decide on why they make that a lot of that research is in the public domain to this debate it's been going on for decades it has been going on for decades and this is not the first time that someone that there's been a suggestion that there's a safety issue or something less wholesome or less desirable desirable about dairy products sourced from these cows that have been treated and every single time this is come up it has been rejected by the scientific and regulatory community it was an unfair and deceptive trade practice for our law to attempt to introduce itself and distinguish itself from its competitors by suggesting that its products are better superior more wholesome healthier safer for you in quote r b s t free could suggest eroni asli that there's a quality difference and they warned advertisers about it and the state of wisconsin in language by the way which is identical to the district court's injunction said you can't directly or by implication imply that there's a compositional quality or safety difference between milk from one cow versus the other based on whether they were treated with this form of west or other questions like the court for its atten the requirement of substantial proof at a preliminary injunction base that is much higher than summary judgment so it's not that you can come forward with no evidence of confusion or causation like they've done here the burden is even higher than it is in summary judgment you also suggested that in the seventh circuit you can show consumer confusion without any evidence even at trial there is no case in the seventh circuit that suggests you can show evidence of consumer confusion at the  phase or a trial without evidence of consumer confusion i think that distinction less evidence of actual confusion vs likelihood of confusion so the below case actually says those words exactly the court can find it in fired the misleading only if presented with evidence of actual consumer deception so you actually have to show consumers who are the targeted audience were deceived by the not cases usually speak in the alternative i know there's language that seems to suggest that only proof of actual confusion is sufficient but the elemental requirement at the doctrine is usually likelihood of confusion there's actual evidence of actual confusion will suffice obviously but it's not necessary that i haven't seen any court and indeed decision from this court is that well you know we're going to give you an injunction or you're refunded one i couldn't find any and they didn't cite any so i'll of the ad that we've talked about the other issue that was just brought up as a causation issue we didn't talk about it too much in the beginning but lexmark requires that it follows that the injury alleged flows directly from the deception again this intermediate cheese manufacturer is not to see so the injury and the court said it mr bishop said it it's in the decision the injury change here would be the longest injury chain ever supported by any court decision that that the planet that the plaintiffs cited that this or court cited was a five step injury chain between cheese consumers to cheese manufacturers to producers to dairy farmers to a longer right but the dots are fairly easy to connect here in this it's not next it should have been easy for them to come forward with some evidence they completely failed on at least two of the steps one is step one the consumer confusion that we've talked about and then the  final step where a lot goes direct customers that's that we're not going to buy or b s t we're not going by postulate from you anymore again we've got one person in the middle saying we're not going to do we're not going to use our beauty in our cheese but they can source from anybody else who's already not using our b s t like most airy productions are and so they can go source from someone else it doesn't mean that along those customers their direct customers were the dairy farmers are stopping using this they could have gotten some evidence they could have gone to their customers and said hey is this going to have any impact on you had five weeks to do it they were thinking about litigation from day one and that evidence shows that in their e mails so they could have gone best ask their customers or had run their customers shops and say hey this really impacts me and i'm going to stop buying possible like they didn't put any evidence that this is  case about evidentiary failure at the preliminary junction phase the evidentiary standard is higher than it is it's summary judgment and they didn't come forward with the evidence do they could have done it they had time to do it it wasn't like a you know t r o hearing where they literally only had two had five weeks they had all these meetings they went out and met with the cheese producer they went out and they had internal meetings about coming up with litigation strategy so they had time to put together their case and they didn't get the evidence and so for the injunction they'll have their chance to try to go get that evidence there's plenty of time but the injunction without evidence cannot be sustained months or any other questions thank you partly not a thank you i thanks to all counsel the case is taken under advisement and the