please the court this is a case of where you have a single customer who was being gouged on pricing and decided to go to a second supplier to get tires they went to a supplier they already were worked with regularly and asked them to supply some sample tires west the defendant in this case provided twelve excuse me i'd like my apology who like to reserve seven minutes for about west of the supplier in this case provided genuine tires they have they are structurally entirely different from the outrigger tire this was a finding that was a outrigger tire yes you're on a from a outrigger talk necessarily every outrigger tire from the outward tires that were before the jury from the tires that were provided for that rig a tire that was tested by and about forgotten his name mr lavan the person whose whose status as an expert or the nature of his testimony is it issue with regard to one of the eviden objections but whoever that person was he tested compared to tires and he found them different there were two people that tested the tires your honor one is jerry leyden who is an expert witness and he tested made that test his determination was of the tires were entirely structurally different every ply every piece of material every single part of the tires were instructed entirely different with the exception of similarity to begin with we we believe that the evidence does show that but the critical issue in this case the jury apparently didn't reach the same conclusion they were they were neglected the ability reasons why you think we should put that conclusion aside but the jury didn't reach that conclusion based on the evidence they heard that is true jurado that's not the premise we start from the critical issue in this case is false designation of origin and is designed to protect brands not innovation and it's critical to understand that o t s position here is not that west ever took a genuine already manufactured outrigger tire and dist branded that tire at every turn from the from the complaint through trial through closing argument through post trial through this briefing o t r is consistently maintained that what wes did was utilize an outrigger mold to copy that tire that is vastly different from using an already manufactured tired and not sure i understand the difference the difference is it the difference is what is explained in under the daystar case under traffics under bony towboats that if you have an unpatented unprotected product of any any nature so here we have a tire that was not protected by patent or by trade dress as the jury found once you have that the federal law permits and in fact encourages copying the sale this wasn't just copying the whole point of it it's using the more that was used for outrigger tires to produce another tire that's not that's not duplicating that's not imitating that's taking the tire that otherwise would be an outrigger tire and calling it  so long as there is no protection on that tire that is permissible that is what happened in bonino boats where they huge unpatented molds for boat hulls and the state law had said that that was impermissible and the supreme court indicated that's not the case that if it because it's not patented they could use that those boats the sixth circuit has also looked at this in the key ho components feedback at best lighting and that situation you had  sit the defendant actually was the manufacturer for the plaintiff used molds to make tires for the plaintiff used their specifications and then turned around and made more use those same olds to make its own to products and the sixth circuit looking at the daystar case and traffic's indicated that that is not false designation or of origin as a matter of law and because the product is functional and it's unprotected all it can be copied there's just nothing that that's the purview of patent law you can get a utility patent on a functional design you can get a design patent on an arbitrary design they had a trade secret case they lost back case they have no rights in the tire design they had they claim cherry dress rights and the jury found that that tree dress was invalid as lacking a secondary meaning in being functional so what we have is a product that is in the public domain and can be copied under supreme court law and that is the crux of this case if we if we had a different situation if the trade dress claim had been upheld we'd be we'd be having a different discussion here but the trade dress claim was invalidated and o t r never sought to patent this product under design or under design or utility patterns and what they're good at getting a sensually if the if this federal false designation claim persists is what they have is it among not believe on a product that they wouldn't otherwise have any rights to in any others there are dogs well short of that i mean that the objection here as articulated as your client to their mold to make a demonstration or a set of demonstration tires now i don't know why that should result as a remedy and what you're describing as a perpetual stranglehold on the market because your client presumably has a position to make his own tires at some point in time but it doesn't remove the the perceived problem that the jury found with the business practice that use the other guy's mold to make tires that you passed off as yours you're so so i'm just saying i understand that that the remedy which o t r most wants may not properly available be available that doesn't mean that no remedy should be available your honor we submit that it does because under daystar in daystar you have a situation where the supreme court held that is long as you know again the lanham act is doesn't exist to remove reward manufacturers for innovation it's it is a do it is a brand designation issue so once there is no brand on that tire that cannot be improper conduct under the lanham act and that i think is very consistent with what is found in traffics what is found in bonita boats and the keyhole the court found at the record the court's position at the in the post trial motions that excerpt of record thirty nine to forty is that precisely that because it is that precise finding  support of the false designation claim which is what makes up the w c p a tortious interference and the tortious interference in w c p a claims so it is that that precise situation the that finding a false designation of origin that creates those and the court said that's what supports them correspondingly if there is no false designation of origin we submit there cannot be cannot be any c p a or tortious interference claims so for that reason alone we believe that that is the case additionally your honour's the c p a requires that there be a harm to the public again had they won the trade dress claim that you make a rule fifty motion on that basis your on it we did that is of verifier is it at an excerpt of record for one we indicated as were indicating here that it rises and falls with the lanham act claims because the w c p a specifically requires that there be improper conduct that affects the public interest that the court repeatedly recognize that these claims are connected these are driven of the state law claims are derivative of the lanham act claims once  you let me clarify the public interest element on the job you c p a it is is found automatically if you were there was a violation of the trade dress infringement because trade dress infringement is a consumer protection type claim were treated the lanham act is designed to protect consumers so once again the those that statutory information go over that statutory basis goes away then there is nothing left that would support this claim there's nothing that affects the public in any way because that was their link to the public claim i'm aware you made the argument to the district court in your own fifty motion that  the lanham act claimed that survive in the rest that either i didn't see anything that articulated what you just told me which is that there's no other possible source of public interest and why isn't there another possible source  because in the suit in the situation where you have his tortious interference claims that or are single one relating to a single transaction and the tortious interference claim even if it were to survive with respect to solid only affects that's a lot of public interest and the other is relating to these twelve unbranded tires that were given exclusively to a single consumer and i believe it is the the hang man ridge case out of the out of washington at seven one thousand pieces and five thirty one references what can create public interest and when you have a single transaction like this this this giving over of the unbranded tires to genie it must affect point we had we had reflected that we the court is indicating the record basically pushed us to finish our fifty it's a fact record i didn't read it all i  case on that it was the lanham this violation this counterfeiting which they claimed recount counterfeited these tires that counterfeiting of those tires is what premise that's how the public was injured if there  indicated they there is no impact on the consumers in any respect other than with the trade dress claims and therefore the w c p a claim should fall likewise the tortious interference claims again we believe as interference these are exceptional e mails i'll just say i've never seen e mails like this they're very problematic for you and it's hard for me to imagine that there isn't a tortious interference claim i'm just flipping through trying to find them then it is a large record forgive me but i think i read one where there were these multiple requests from mr west and they were rebuffed a couple of times and said we can't do this now we have an agreement with a third party not we i think with o t r with the affiliated entity why with that was to my other point you're on to the we objected to the the jury instructions and we objected to the evidence of those those contracts coming in at all but if you don't win on those other the testimony of witnesses back to the facts that relating to functionality here you have a president how does it matter at this point i confess are too many moving parts so i haven't got a complete handle on it unless something else changes why does the fraud determination matter at this point it goes to the equities of the case it goes to the potential of potential of attorney's fees it goes  if fraud can provide a defendant damages as well in a case so it goes to other bases or one of western observers of record i've been doing appeals for thirty years and rarely have i ever found a on appeal where my whole case even though there's lots of other evidence and i'm not giving it up is pretty much summarized in terms of the verdicts t bottom because you read emails upside down you have mr mr west essentially asking don't you make this size for solid deal could you buff off the solid you'll name or remove the plate and let me get it tested he understands what he's doing is explaining what he's doing volume is very high he's dangling business we can make a lot of money if you do this and so this has been the focus that i promise we have read these emails well you know i won't go through it i'll just direct you page three a one something else and i don't  spent a lot of time on the verdicts that we won either but miss le bron dykeman's explanation of what we won in reverse passing off leave something out what was removed and it's also mentioned in those emails it's not just using  and blatter to make the tire it's putting spring plates on to cover up the words outrigger or at least there was evidence in which the jury could have found right out rigor is a is trademarked not disputed so they took the name off the tire that she keeps talking about them as under ended they unbranded them they made them but they unbranded that well but that means they're not they're not infringing on the name and so we go back to the question of is there something more to be protected in the face of the jury's determination the parent lay that there isn't as a matter of but remember there's two different trademarks here that we're talking about reversed passing off has more to do with the trademark on the name that was taken off the tire it's not that the design of the tire wasn't infringed also well i don't understand that because as a genie didn't get demonstration tires that are labeled outrigger indeed they got tires which by their evaluation were very different from an outrigger tire which has me completely confused but that's not only when i confess my now let me get to that they did they got outrigger tires that somebody had taken the name off and the name was trademark there's two trademarks here there's the trademark on the outer your name which has never been disputed and there is it wasn't infringed it was because it was removed it's reversed well say wasn't fringe but it was always never actually on the tire in the first place because of the use of the spring pla the tire which brings us to the question of what protection is there for the tire and the tread which is apparently what we're really talking about here that doesn't come into play until you get to the infringement claims but that doesn't have to be implicated in the reverse passing off quite the reverse passing off claim the protection is the outrigger name that they took off this is well this is textbook reverse passing on the the protection i got to tell you i just don't understand the protection to basement reversed passing off is taking somebody else's product and passing it off as your own that way and that gets you to her argument that that two experts looked at these tires and did the cross section and said these were and that's my next point and let me explain that there are two experts at issue here one testified and one didn't one was a gentleman named kate who worked for jeanie who wrote a report that judge sukkot excluded the other one was mr laden who was o t r as expert who testified they did similar testing on different tires and they cut them open and mr laden explained and this is what clarifies that that the internals of a tire the way the plies lay up on each other will be different on the same tire if it's made in a different qualified as an expert and he got cross examined whereas jeannie west tried to do the same thing with this jeannie report without calling mr cape so they just wanted to put the expert report in and let it go at that but that's the difference but y tires from different plants outriggers from different plants will be different on the inside the specifications will say it has to have a certain number applies and they have to be made of a certain material maybe they're nylon maybe they're metal but they aren't going to come out exactly the same way in the sri lanka plant as the thailand plant if you cut them open and mr layton explains that completely the i want to go on to my cross appeal at this point i i should spend a moment because muslim men did at the end talking about the judgment of a matter of law that that they've appealed the judge to go granted on the fraud claim and i think honestly i don't need to so much more than what judge sukkot did he did a very thorough analysis of the record we wish that he had been able to reach this ruling before the case went to the jury but afterwards and i think he pointed out very effectively that there really was no evidence of fraud document different documents for different reasons but everything that is in the paragraph they say was left out was said seven months earlier in a declaration from mr smith in greater detail than the e mail so the examiner got more than that the same is true of mr smith's own discussion about people can see the difference in these tires and let me tell you i i mean i've looked at a lot more pictures of this than you have probably and i've looked at a lot more these tires i have a chunk of one in my office which is very helpful you will be able to recognize  eventually they are quite distinctive and they're especially distinctive rate at cocktail parties i'm sure i did you know i was going to bring it here with you but if they would let me bring it on the plane why does the fraud piece matter because it matters to o t is registration registered trademark in the angles of the lugs which they lost as a result of the fraud well let's what we were getting to that issue yes and it is the registration with the registration be re activated if the fraud piece if we simply affirmed these pieces of the district court that is let the fraud piece be taken out but retained the jury's finding too many pieces here the jury's answer to special verdict question number one yes if that survives would registration be in the cards again don't you have to set that aside well i think what we argued is that the jury's question answer to question number one that it was not valid if you're going to be getting to that but i'm trying to figure out which piece has what impact and i understand that the setting aside the fraud is important to the argument going to make there right i'm trying to figure out is the setting aside the fraud have other significance beyond that not really except to revive the revive the trademark essentially or at least get us a new trial on whether the trademark is valid now i want to is in this part persuasive you want to take your best shot well i if i understand the question fraud is the most there are three reasons like my question sit me want to leave you wondering my question has to do with why you think you're entitled to it a new trial well we're we think we're entitled to judgment as a matter of law on that our trademark was valid but if the court believes that functionality and and much of the lack of secondary meaning is  contestable then we should at least get a new trial on it and there are three reasons for that one is that you cannot say with confidence given the way those two questions on the verdict form or worded that the jury ever considered functionality and so that we assume that they follow the instruction but if that's the that's the problem with that verdict form is there is an inconsistency between the way the instructions told them what to do and the way those questions were held is that i mean did anybody object to the form it's west's defenses your honor it's their responsibility but everybody had a chance to weigh in on an amount i've been in trials where it turns out the jury comes back and says a problem with this form oh gee thanks jury for doing the extra work because we had missed that a number forty two and forty three and so forth but i'm not sure how the fact that the jury answers a questionnaire which on its face tells the mansour seems to say answer one and that tells you where they go on an answer number two and then over here have instructions and say you really have to start with two and that determines where the number one and nobody is objecting to either the instructions or form in that respect why a do over we can because wes well on this issue because west is the one that has to be able to persuade you with confidence as the cases say that the jury actually consider those issue jury may not have considered functionality or a lack of certainty is what you just said i think tells me that the answer to my question is yes the jury may not have you want us to assume they got it wrong no i think that if they may not have then we cannot say with of the wash over your concern that this is tainted but that doesn't mean that the evidence was inadmissible it means that the court allowed them to make take their best shot on their fraud claim and the jury found it you know they came up empty but but ultimately the judge decided that but  doesn't mean the evidence was inadmissible well it i think it would have affected a lot of evidence but if you look at the at the trial record the the fraud claim that the judge later decided should have been in the first place dominated where's the air the trial where's the court going there is in allowing  west to make arguments introduce evidence about fraud and stand there and say fraud fraud fraud because there was no motion in that should have excluded if the judge had reached the conclusion that he reached after trial before trial what was he supposed to do that he that we should grant i should grant a new trial without the fraud claims or judgment to o t r on its on the infringement claim ok so we're not communicating and i'm trying to forgive me but i'm trying to figure out what the air is that you're discussion by allowing them to introduce evidence of fraud in the patent office ultimately since they didn't make their fraud claim yes ok what's your third reason you should get a new trial the third reason is that there was in fact insufficient and really no evidence of either functionality or or a lack of secondary meaning which were the only grounds left if fraud is out well there was some evidence of functionality ill if nothing else there's the e mail that fell fell short of fraud but there's the e mail suggesting that the trades are self cleaning the design got the trends you've got if you remember nothing else i say today please remember this what was trademarked was not the tread it was not the lug it was not the interlocking logs it was one specific feature of the lug it was the steep angle of that help me i've read that a lot of times in your but why not help me a bit because we go here now because nowhere in the record does anybody say that the steep angle of those lugs helps self cleaning attractive force which is k sense and the court's got to apply the disc golf factors but it's got to apply them with an eye toward the supreme court's repeated admonition that function has to be essential mr layton testified without dispute that sharp angles like that are counter functional they are the worst way to do to make a tire that's got better traction insults and the argument was that there's no evidence to the contrary there is no evidence to the contrary about the logging there is lots of people who talk about the treads help the interlocking legs or help those are all features of all our four tires but what mr taylor did is he looked at one feature of that and decided to do it this way so it would be distinctive because a customer asked him to which is classic what you would want to trademark but in doing so he sacrificed a little bit of function and he made it counter functional if it's counter functional it's not function we'll but it's not functional you can trade market if it's also distinctive thank you for the clarification i don't mean to ruin your morning by asking the question i think that was the highlight so i think that end our morning job it's all fine but it is absolutely and there's also no evidence that there was not a choir distinctiveness five o t r witnesses testified about that and they all talked about it there is no suggestion that it had an acquired distinctive this in twelve at that time fourteen years of use forty eight million dollars in sales of that tire what about the the continuing injunction  injunction is not before you as we've said in our brief because and we all agreed on that down below because we went to judge sukkot with the rule fifty four motion that they join that wes joined saying please let us appeal the rest of the case and that's why we're here because he granted that motion the injunction is sitting out there i think it's amply supported by the verdicts that we won certainly it will become more supportive if we can get our new trial or our judgment on the infringement claims was supported by the verdict you one years  passed there's been lots of time when west could have developed its own tire that if he develops his own tire that will violate the injunction the injunction doesn't say he can't sell tires by any means it says he  they please the court first with respect to your question before at excerpt of record thirty nine under paragraph or section two tortious interference in c p a is where the court references the interlink between the claims all being connected to the false designation claim thank you additionally on the phone with respect to the false designation which we believe is the key to our appeal here we believe it is semantic trickery to say that the outrigger is a genuine or that the west tire is a genuine outrigger because it does not it is not made up at all the same as there and found because of the testimony i was concerned about the testimony about the tires being manufactured at different plants for the jury have so found we don't believe so your hon because mitt mr laden's the one who tells them that this is these tires are entirely different but he also told them it would be if they were part but that's pure speculation that it could be made in a different way they had a trade secret claim saying we have specifications all our manufacturers must use these specified for any evidence of an alternative source of the tire we did not so those emails yell out kind aloud that it's likely those tires came from the outrigger mold but o it simply doesn't but now you get into a different issue i denying that issue but you're trying to make a case that said that they're experts so they're entirely different tiles end of story and that's not the end of the story we believe your honor if assuming that the are as the jury presumably found that they use them all that doesn't create false designation we believe as well the fact that it's not a genuine outrigger but for false designation it doesn't matter because it is not it was even if we made it in the same old because they have no protectable rights on the functional tire or it's trad and no use of made it is not reversed passing off or passing off so it is not a lanham act violation and you're relying on these we're relying on daystar it's progeny and i do want to reiterate the keyhole case which i think is very specific seven thousand six fed third five seventy six which is in our briefing with respect to their claim that the fraud verdict somehow taints the entire verdict the entire verdict number one to your point your honor they never requested that the fraud verdict they never be excluded or the fraud evidence be excluded they didn't file a motion in limine a that in file and motion for summary judgment they didn't even object to most of the evidence so they have no basis for claiming it should have gone to the jury number two they it is not west burden to prove that their trade dress had was invalid by lack  of lack of second to me secondary meaning or functionality it is their burden to prove that they are the trademark owner they have the burden to prove functionality or non functionality and secondary meaning and with respect lay a little bit to the his argument about the order of the verdict form since the burden would shift depending on the fraud finding but but i digress go ahead with respect to fraud there is ample evidence you don't have to look past the taylor email taylor who is fred to be taylor f bt the registrar on before the issue mark was registered tells his business associates the range of the tread angles angles the range of the tread angles and the tires flatness of the key the why why the tire works so well  that's that's to the fraud issue that's what i'm talking about but i'm saying with respect to the functionality the fact that there is functionality out all over is ok in the front about respect to fry it sounds like joe johnson and i have the same question which is that lack of showing of the trademark office lifted the objection for secondary meaning and they maintained the objection functionality twice until the evans declaration was submitted to believe that that reliance is there but even if this court doesn't agree with us on the fraud issue it doesn't entitle o t r to a new trial on functional on the violin maybe of the trade dress add a issue and because of that because there is plenty of evidence of lack of secondary meaning with respect to there are secondary meaning requires consumer perception consumer understanding and association of the mark with the brand owner here the only evidence that o t r offers is its own employees and experts no customers testify in any testimony they have even with respect to the distinctiveness of the tire that they say that angle understand we're talking a five degree angle difference between the b if you baby and the out worker five degrees with respect to that that evidence is all contradicted by the fact that their own employees can't tell it apart from the beefy baby which preexisted them and was being sold at the same was arguing that there wasn't any evidence that west that with that tire was made at super hawk but there was plenty of evidence of that including the fact that mr jenks said he'd make it in the jury was entitled to believe that he did in the email that he did what he said he would do  e mail the error in this goes back to some of the christians earlier questions to me the error on the judgment was a matter of law was that it wasn't granted before the case went to the jury but that happens district judges are sometimes urged to wait right and when it happens there are results and the result in this case was that it allowed the result is it merely that the jury's verdict on the counts that did go to the jury get set aside and get a new trial well it depends on the nature of the allegation because if the not granting that motion before trial change the character of the closing arguments change the character of the jury instructions fraud is not just another count well i'm sorry you have sixty seconds but i do your honor ms ms le bron dykeman mention the taylor e mail which was also mentioned in the letter she sent the other day but she misquoted it in her letter and she misquoted it today mr taylor did not say and the it's an e r three forty eight i could feel it you've heard us say it's an e r three forty eight and the way she quoted in her letter in the way she quoted today as she says mr taylor said the key to why the tire works so well for a w p vehicles the word works is not actually in that sentence the word that's in that sentence performs which is why is that different i and i see the furrowed brow and i will tell you this is an email to not this is not an e mail to customers in which mr taylor is bragging about how well his tire handles mud this is an e mail to business partners in which he is telling them hey we're going to get trademark protection and no one else is going to be able to sell this performs refers to sales he is talking and again he's not talking about that particular angle which is all that is sales well ok it might but by the way this is this is one piece of evidence in an overall very large record where people testified over and over sure lugs contribute to functionality sure interlocking logs contribute to functionality but this angle doesn't contribute to functionality it cuts against functionality so it's not functional it was distinctive through years of use and it could have and it was eligible to be trademarked and that's why he did it thank you arguments in this case this is argued is submitted for a decision by the court that completes our calendar for today we on recess until nine am tomorrow morning