because the parent company b h t does not have the exclusive right to use the word more brick house rather they have the exclusive right to use the entire mor house so let me ask you this you have this issue about it being boys and and they are your opposing counsel has argued that you have to follow a rule sixty before motion to raise that and we seem to have different circuits coming out different ways and we only have an unpublished opinion so we don't have clear binding precedent in our board why shouldn't we adopt the principle that in that the trial courts the best place to resolve factual any facts no i understand that but you are still you are challenging that the defectiveness of the service of process and so any factual findings in regard to that should be made in the trial court right so isn't that why the rule that i think it's the organization code says that doesn't prevent any other method in this thing about leaving it was somebody who's over sixteen in the place specified is i mean i can't tell you how many i've seen of those they get served that way so that's a way to do it under looting and the default judgment which requires compliance with service where it was there any record of was there any discussion in that case about whether it would have been different if instead of leaving it on the doorstep it had been given to a person over the texas law because you're saying that we should clarify or announce that texas law is such that even where a judge orders a particular form of service and let's assume argue endo that the judge's order sixteen one thirty you serve the defendant and the address listed is a different address on each of the babies it is physically impossible the process could be three different locations at the same time now time left so we'll give you give you two additional minutes town brick house restaurant and bar did not infringe on the trademark a word m so just talk to us about what's in the appellate record absolutely the default judgment that was injured on april twenty second and it's now been almost a year and the appellate record shows that there is an injunction in place  here and soon the defendant should be falling in the art world in a we don't we don't want to hear about what's happened since the judgement was in that we look only to the record in this case so don't don't try to poison it i'm not saying that's not that's an invalid argument but that it's not uncommon for the clerk's office to enter a clerk's order dismissing for want of prosecution and to enter its clerk's order reinstating the case after somebody moves for it and i don't think the mandate tends to be mentioned in either place and so you've basically said we should announce a rule that out we've we've heretofore announced that would invalidate a great many appellate decisions that were rendered jurisdiction to the district but we've also told the court clerk that the clerk asked the authority to reinstate the appeal and so what i'm saying is and i think you pointed out actually to be honest with you i'm going to look into as addressing our local rules to make this more clear but we are we are i know that i've worked on appeals that the clerk had dismissed and then reinstated and so are you saying that that work w without anybody really noticing this and so the six to the extent necessary we here by recall mandate we could do that and that would meet the question you could do but i'm going to tell you why shouldn't we think that far from preventing injustices we're calling them and in this so we think that we're calling them into the after the curve in all of the string along tactics and i won't go into any post record statements from the district court about that but to reward agreeing or disagreeing with him but that's his position and his position is if you ever gave me a shot at the merits on this case i would be able to show the marks are dissimilar the clientele all this i learned a lot about gastro pub sing dance clubs for those of  office reinstates the appeal you didn't seek a single judge or a three judge panel we can review clerk orders even if the clerk has the authority to enter an order we always could review the actual or at people ask us to sure it with some frequency not a great deal with some frequency and you didn't do that so now we've got the works order for better for worse that gave him the benefit of these various excuses that you say are not now the reason that we didn't move reconsideration is that we don't  court purported to be home and so we didn't disagree with what the for did with respect to any kind of record keeping reopening purposes but you know that is separate and apart from the m know i suppose the well well but if judge change just pointed out immediately it was if it was reopened without any challenge to that order reopen the right because we didn't read it and we didn't read that so with the way to phrase this it the rule that you're articulating be putting aside the man let's say the mandate issue never happened that we never had a free take issues and this was just a regular appeal regular briefing and here we are the rule that you would announce  of the return of service proves his case because he has his argument about three addresses which again i don't read the affidavit that way but that's an argument that he's making and if you read it that way then the face of the service would show it in possibility that three different addresses were served at doubt about that you're saying that could be supplemented in the rule sixty before proceeding by the process server clearing that up yet it's not a rate of error kind of circumstance like in state court where it's the face of the record has to substantiate it or not right how it works  then it would have to in the from that and they didn't do that but you're saying in the sixty before proceeding it was the process server if there is some confusion about the addresses could have either testified or filed another affidavit or wherever to clarify what address he went that has to do with whether the court district court a could entertain a will sixty before motion filed on district court be judged it's not about appeals and whether we should consider a record you such a repeal however there is no record for us to look at to decide and therefore you essentially lose the appeal so we have jurisdiction but you lose the appeal on the merits for failure to file that's the rule he thinks is regardless of how this case case comes out whether that happens or not is not in my control because there's believe it or not other people on the court who have opinions about things and you know to add to their you know the rule you know