has argued that they are entitled to notice and they have argued that noticed in ring clues knowing what the registration number is which is part of the form a one to ing case it is specifically in paragraph nine of the complaint and if for some reason it is required if it's required to be in the complaint we've got no problem putting it in there that said there is no case law saying that it's a required element infringement it is effectively like the claims processing requirement where we have any authority saying that such a requirement is unnecessary is necessarily needs to be pled specifically i guess you know sometimes you know we look at these things so academically at least we can for myself i can lose track of where we are as a practical matter if if the judge says your complaint didn't put the number in i suppose you can file a notice of appeal and file briefs and could easily put the number of the coverage in and yet somehow judge real found that lead to many would be futile and they couldn't fix that alleged deficiency so i don't think you're quite right i don't understand why we're here with regard to that point since it would have been the easy fix and we would been happy to do it what about the other problems you identified in this in this particular case not the other one but this one well as the court has noted  referencing the amended complaint from the labeling case it's clear that we could have provided a full description of where the substantial similarity is we could have provided a further description of what we believe to be the copyrightable expression we could have provided further details on access what we believe that the inverse ratio rule does say that were designed or so so i mean there's case law just so strikingly similar to preclude the possibility of independent creation access can be presumed and we've alleged that original elements of the design or we could have is readily alleged if it's not in the complaint that was dismissed without leave to amend that protect design were copied verbatim defendants have said well we're entitled to know what the garment is is a sure what is in fact in the complaint in this case and you can look at the excerpt of record on page ninety four it says following the sampling sales plan to find found unauthorized copies of the design on the form of garments for sale to each of them including but not limited to  leave to men would not have been granted since the allegations could have been bolstered and there was no opportunity whatsoever to do so despite again our belief that the complaint was properly pled at the first and we say that paragraph fourteen plaintiff informed him believed the defendant accessed the subject design through third party vendors and or doe defendants including without limitation overseas converters and printing mills access to plaintiff design company primarily dealing in laces they produce fabric overseas if one of those overseas mills makes their design available to a company like h no it's not a defense to cover infringement and we've specifically alleged potential access through overseas companies again we don't know at this point and can't be expected to know or plead how specifically agent and access to our clients design but just to be clear in the other case you're relying on widespread imitation in this case you're relying on sort of direct access by the phone no the same allegations are in both complaint what the complaints allege is they could have both complaints allege they could access these through overseas converters companies  clients use that would have the design garments lawfully manufactured fabric that are floating around the marketplace and that's beefed up in the labeling cases and in fact hundreds of thousands of yards have gone out into the market why don't you have to allege some way where that you know they use those places or that they would have to or something about the industry because i don't see anything in that this complaint that creates the chain that's that's required in order to allege access we are unable to create a chain to establish access without knowing what h and m's position ashcroft the it also has you know you can't go you can't go on a fishing x expedition i mean the appellant's there at the same argument and the supreme court said no you need to have enough to make it plausible that you can prove your case and here it's well we sell all over the place and they could following it the supreme court has said that we're not obligated to prove facts soley within the knowledge of the other party what we look we could certainly allege these garments were made in china our client is manufactured hundreds of thousands of years in china the design the problem is i could come up with additional theories but effectively the plaintiff is then being asked to guess or speculate about possible routes of access you know what i can say for certain is that our client has printed substantial yardage of the fabric hundreds of thousands of yours that we can put that in there we can put in there that we work with overseas suppliers that on occasion can wrongly disseminate designs to people that shouldn't have them we can say there's things that we can say and then there's asking us to speculate or guess in the pleadings about possible actual routes and i think there's ample case law this is we're not obligated to do that  for respondent h and m and cross appellant i disagree with opposing counsel's last statement i believe that they are obligated to have at least one theory of access on when they plead their complaint in the first instance they can either allege direct access which is what was at issue in the early print tax case they sold the fabric directly to aristotle and the people who made goods for them they use so they have four different ways that you could plead access there's a direct x the access there's chain of events there's widespread dissemination and they can even plead striking similarity and if they plead striking similarity that presumption can be rebo by evidence of independent creation which a copyright registration if the defendant had one would rebut that presumption and then take that avenue away though if they ended the complaint to plead striking similarity and put in  the photos from their motion to reconsider which one are strikingly similar than the ones in their complaint would that be enough to state a claim copying i would say that would be enough to state a claim for copying provided that as the financially can make a motion to dismiss and if i had a copyright registration that showed independent creation then they would dictate the outcome of this appeal least because here unlike the other case they never were given an opportunity to amend even once right this is the very first complaint they filed well the only way we can affirm dismiss the rationale the tread real adopted was to say that men would be futile and you just conceded it seems to me that it would i think in listening to opposing counsel and to listening to him arguing to seeing his complaint and then seeing the complaint in labeling which is not the first amended complaint which is not atypical i don't know if they have more facts i don't know if a says we infer from such striking similarity that it was no other way that it could have occurred but for copying so there's no requirement to plead to access and under the at theory i'm sorry i think the striking similarity tell us that there's it would assume access except it says that access is presumed and less independent creation existed and there's actually a test to look at you know amended complaint right they don't have to prove that there wasn't independent access they just have to allege striking similarity and they have they've stated a claim of copying so they've they've alleged ownership and the striking similarity would allege copy and actually the striking similarity shifts the burden so the burden if they plead striking similarity the burden moves to the defendant to rebut that presumption and you can rebut that presumption in a few ways the most efficient way of doing that is with a coverage a certificate showing independent creation but you can also show that the works are in the public domain and there's a higher probability that independent creation occurred so it wouldn't affirmative get them past the pleading stage it just pushes the presumption on to the defendant very similar to a certificate of registration puts the presumption if it's filed within the period of time puts the presumption on the defendant so it doesn't necessarily mean of notice it's not just the copyright number it's the deposit materials that go along with the copyright and it's the material the certificate of registration those materials are very not challenging but they can be not always available from the copyright office they take three four five months to get these materials from the copyright office and as a defendant in trying to mount a case and in trying to put forth a defense it's very we are entitled to notice  we shouldn't have to figure out a puzzle in this case right we pulled the online materials the cover right office doesn't have the type of library that you can get in the trademark office we can't see what they went through to prove the printer not and here we found there's two or three copyrights for the one nine hundred sixty seven print across references another print from said you know that's an earlier mobile print so this whole case was a puzzle and if we're going to be hauled into court we should be entitled to know what we're defending and so it's not just the number the number itself is not sufficient the certificate of registration plus the accompanying materials needs to be applied so i just wanted to touch on that point because they did the number is in the form that's you know submitted to the case as part of the docket and the number was put into the copy of the labeling case but wasn't put into either one of these complaints was a certificate of registration and what wasn't put into either one of firemen seem to be more rigorous to there maybe because there are so many checks cases coming out of that circuit but no yes that such a holding would be great guidance to those of us that are in it would have prevented us a trip here in this instance is in sweden we didn't we haven't seen their print before there was no evidence there was no facts there was nothing in anyone's knowledge that connect the two parties nonetheless we have these two patterns that look like each other and we try to figure out a resolution to this case because litigation is expensive and our attempts at resolving this matter were totally revived and so we move in the district court we prevail on our motionlessness and then we apply for and the judge denied our fee request and he said that because plane of wasn't moving in bad faith and because we saved the expense of moving for summary judgment he denied a few requests and we argued in our paperwork that that wasn't sufficient there we have the forty factors there's five of them which should be weighed and making a determination whether our fear quest is reasonable and recently and  position so they would basically say in the ninth circuit they would say if the case went to the jury that isn't actually reasonable and then they shouldn't get fees awarded against them and given the positions taken here you know they have the deposit materials they have a copyright registration why weren't those materials attach the complaint and if they don't have such materials they never should have all this into court in the first instance so not only and their access there wasn't any access allegations and the judge found this was a naturally occurring flower so when you weigh all five of the fogarty factors we find that each one weighs in our favor and  identity of the garments i don't think we need to use the word striking similarity percent a if you look at paragraph eleven it says that following malibu's sampling in sales of this design it found unauthorized copies of design in the form of those garments being sold unauthorized copies doesn't it doesn't say different but substantial summers's on all first copies a copy is a copy and if it's a copy and it's identical then that is sufficient to establish striking similarity and remember as you're well aware that in deciding a motion to dismiss the factual allegations need to be interpreted in the light most favorable to the plaintiff if in fact these were copies for baden reproductions that is sufficient to establish substantial similarity i'm sorry the virtual identity of the designs so i don't think the complaint needed to be amended to specifically ledge that i think it's there wouldn't you say well tell me if i'm wrong on this wouldn't you say though that in this context it's using the word copy or copied isn't that just equivalent to a legal conclusion and you've got to give  the sort of factual underpinning for that so that we can conclude that it's possible that you're going to be right when it comes time to proving a snap i don't think so i think that if a copy is made of something if i take i remember when i was a kid and you'd get you know the your friend would make a mixed tape and then make you a copy of a copy as a copy it's a plain language definition that suggests if not directly means that  it's an identical reproduction now whether or not that's true will be fleshed out in summary judgment or trial but if the allegation is true and i don't think it's a legal conclusion you know if i make a copy of it if i plead don't i get a copy of the tape that means something but why couldn't you for example as you tried to do in the other complaint why couldn't you say this is a copy and here's why it's got the exact same stylized flower in this position it's surrounded by those that the other own and all of the special elements are identical or something like that right you could certainly put a little meat on the bones right absolutely you know we could but by the same token we could attach copies of all of the sampling in sales records to show the widespread dissemination we could we could put it together as if it were a summary judgment could we do that absolutely i don't think that that's required by the current pleading standards certainly even if a pleading standards higher than it wasn't perfect ten which admittedly it would be under you know the more recent case law it will entirely so i may tongue is tipping over itself it doesn't rise to that level that we need to affect really make our closing argument in pleading that's our position not like that was there was a motion to dismiss leave him and so that i just want to make sure that we're on the same page factually that there was no leave two men granted that case i know but i mean we have the two cases before us and we kind of know how it played out you though you've complied with the registration requirement you can't follow a copyright action until you've gone to the copyright office to get your certificate it the purpose of the copyright act and the case law interpret ing it and upholding it is not to create unnecessary is i think potentially dispositive the issue it's simply cannot be said that a lawsuit over a design that years earlier in another federal court our client prevailed on a copyright infringement action for found was found hold a valid copyright and prevailed that action on summary judgment summary judgment and following this court's decision of which your honor was a given substantially to that factor and again well i don't i think that this court would be remiss to reverse judge rules ruling on the attorney f act there is all kinds of bouncing going on right congress has balanced the rights between the court and the cabrera office congress says that you have to go to get a copyright a certificate of registration first before you can come to the port materials should have been in the possession of the planet and their failure to attach them to the motion makes their it puts their motive in question and makes us question their motives so  only was their position not objective really reasonable though they need to be told you need to do this there's a deterrence aspect here and a motivation aspect of the facts in this case that also support a finding  not many defendants have the resources to come here and to argue whether access is properly planned or copyright the valid copyright their certificate of registration is properly attached to the complaint most people settle it was in the plaintiff's briefs they filed four hundred fifty three of these complaints within a five year period ten went to trial and only three came up here for further review if a defendant loses a motion  there's no review of that you can you can prove you can ask for emergency review but that's highly unlikely to get a hearing so it's only when a defendant wins that we have an opportunity to talk about these issues so these this case preserve and in addition here we talk to the plainest beforehand and they knew there was no access and instead they went forward with the complaint anyway and there was no more theory of access or no more details in the complaint than what you see today and even standing here today counsel for the plaintiffs state that they did it right you know they say they're pleading standard was right so i think that that feeling this is a case where fees are appropriate and when you weigh all of those folks the factors the fact there their position is not objection reasonable there needs to be something said about the motivation there needs to be something said about the frivolousness of making us who as between the two parties the deposit materials and says no to the carol anderson case at issue there was only ownership of the copyright access was conceded and substantial similarity was conceded so substance or the merits of the copyright itself was not reached by the judge there it was only whether malibu own men in this the assignment process had done had gone correctly so that case doesn't really teach anything about whether they would succeed here