wholly in this action i want to first address my appeal to discord we raised one issue on this appeal which is whether or not the district court abused its discretion in denying my client a prospective injunction after trial to prevent the further dissemination and sale of books bearing my client's keyhole logo trademark i have in my hands one copy of a volume of these books that is published by my client and a copy that is published by the the the a cross appellant vod i refer to my client as marcos america's publishes these works and has published similar works for over seventy five years under this keyhole logo that displayed on the spine of his publication almost eighty percent of the books that it publishes bares this logo over the course of these seventy five years  published over two thousand titles literally tens of millions of books have been sold the majority in the united states but throughout the world by the america organization america's was formed in one thousand nine hundred two by the previous rebbi which movement and brought it to the united states and it was intended to operate as the educational and publishing arm of the law bob each movement and it did so under the previous rebbie and then following his death in  fifty until one thousand nine hundred four under the auspices of the rebbie the revered religious leader who is revered not only within the community but also in the larger jewish community their position is that even though they use the identical try mark on the identical publication a very bizarre get votes position i'm sorry about your opposition my opposition's position i'm sorry your honor bods position of refer to the the opposition's bod bods position is even though it uses the identical trademark on the identical publication sold in the same channel of trades to the same consumers that there will not be inevitable public confusion we oppose the application of the doctrine of latches in this case and that is the sole basis for the district court's denial of our request for an injunction on the grounds that there will be has been and will continue to be inevitable public confusion resulting from the identical use of the trademark  and identical trademark on identical publications the district court record adopted a very severe test from a northern district of new york opinion as the standard for overcoming latches a by reason of public confusion and you're going to address it to the district court took the view that latches was not overcome either by our first argument which is inevitable confusion based essentially on some testimony that it elicited in a trial from one of the witnesses who said yes there are people in the community who may know the difference between these publications and based on that testimony alone the district court said i don't believe and also i should say on what the district court considered to be the absence of sufficient evidence of actual i was addressing second slightly defense with your i'm talking about the test that the district court used to determine whether public confusion the risk of public confusion or actual public confusion would overcome a defense of lodges and the district court adopted to testify member correctly that it was to the that what was needed to overcome latches by reason of public confusion was inevitable public confusion as shown by clear and convincing evidence of actual confusion yes no that that's correct your honor and i just court has the i don't think there's in the that this court and there's no source in this court of that as the test for that for that question no this court has long recognized that in deciding whether or not to apply the doctrine of latches you must take into account the public's interest in not being deceived or confused but there's been no test that there has to be that this has to be established as you said bike you know clear and convincing evidence that actual confusion is resulting so apart from the fact that there has been no test this court hasn't adopted that test but that doesn't mean the test is wrong is the test right or wrong no i think the test is wrong with this court but this court has said in another context is that when you have an identical trademark on identical goods sold to the same consumers as a matter of law there's likelihood of confusion and we would argue in this context there was also going to be inevitable and we're probably confusion that we ever said that in a case where the allegedly confusing works have been sold for many years and there's virtually no evidence of confusion in the in the air maze case which is the case that we rely on this circuit looked at a situation where a defendant was creating air maze knockoff bags and was advertising to the public that these were knockoffs they were not legitimate  's merchandise and was selling it that way for i think between nine and nineteen years and then air mates finally brought suit to stop that arguing that there was a likelihood of post sale confusion and this court said that in that context public confusion was inevitable because it was there there was the identical trade dress if you will on the goods being offered to the same consumers and even though the purchasing consumers might not be confused they would be post confusion because people would see the back and think that it was an airman is back and that period of latches far exceeded the period of watches in this case but the court was in forcing this public right not to be confused yes there was as there is in this case but the finding here is that there's not that the finding in this case of legit that yes it's true judge as the trier found there was not the district court found that there was no bad faith based upon their religious belief rebbie permission having been granted them could never be revoked but this court addressed that issue in a prior case that my clients had before this court where there was the same argument made by another party that they had the religious right based on opinions of rabbis and based on a bet din decision to continue to infringe the copyright in another work that miracle's published and in its opinion this court said no that cannot be because we have to enforce the secular law and ernest i understand there is a can put it mildly big religious dispute lurking in this case but when a district judge makes a finding that a party is in good faith can we reject it on on any basis other than saying it's clearly erroneous no they clearly erroneous standard would apply and we say that it is clearly erroneous because it is conceded that they are deliberately and intentionally using the mark they say in their complaint that it's necessary for them to associate their publications with this symbol and what and the goodwill that it represents as a way of telling the public that their works are consistent with the views of the community and of the rebbie faith can influence a judgment against a party for very good reason but it doesn't really have much to do with whether the there is going to be misleading of the public and there can perfectly well be misleading the public in the absence of bad faith well the district court ultimately found that the public was was misled and that there was a likelihood of confusion my point simply is that if there is intentional infringement as this court has said in a number of decisions the doctrine of latches up priority simply cannot apply because you come seeking equitable relief with clean hands and if you are intentionally infringing intentionally using the mark to try to capitalize on somebody else's good will in that mark you're not entitled to invoke the doctrine of latter part of your evidence is that they set up a mobile stand directly in front of they claim publicly that they are quixote they said so in their testimony that they want that they are key hope that they are the keyhole publication society that they are my clients organization they sell once a year from a truck in front of our headquarters books with the giant keyhole symbol on the side of the truck they use the keyhole symbol on all of their advertising on the internet and refer to themselves as bod slash he hope they've been doing that since one thousand nine hundred ninety five or seven in that  timeframe following the reds passing in one thousand nine hundred four is twenty years yes we've been in litigation with them since two thousand and three and in all that time who's been confused we've offered evidence at trial of actual confusion the district court gave it very little weight because of the district court's view that it was somehow hearsay to have e mails from people who are seeking to purchase their publications from my client what's our standard of review for in order to reject his findings that there is virtually no actual computer the standard of review is the factual finding is clearly erroneous but we're saying something different we're saying as a matter of law if there was intentional infringement issue in the district court relied on an incorrect application of the rule of law yes discredit your evidence saying that that something was hearsay when it wasn't yours that's that's part of what we're saying that would be a legal error we also say that committed the court below committed a legal  in not recognizing that if you if you are valid and intention to use the trademark to capitalize on the good will of the trademark enter owner you are deliberately infringing and under those circumstances not entitled to invoke the doctrine of latches what do you say about the claim of third party usage or during all these years with the court recognized ultimately that that was just wrong one witness had said oh there's lots of books that have this logo on it without any testimony at all about these books where they're sold how they're sold some of these publications dated back to the one nine hundred forty s and fifty's in order to show that third party uses we can to mark you have to show how how how they're sold how many copies are sold whether or not the relevant consumers would know about these uses and that it would have some effect on the public knowledge or understanding of this market or what you just said are those arguments for the trier in deciding whether there's been heard or to use it or  legal arguments that we can consider with respect to that i would say that it's a legal argument in other words the court was clearly right that as a matter of law you cannot establish that a mark is weakened by third party use when you've made no proffer of evidence as to what that use is where the extent of that use i think its core point was that there are some evidence of third party usage but it's not particularly persuasive evidence that there was no evidence as to the scope of the use the scope yes well that goes to weight as well i think this court has said it's a number of decisions without evidence as to how the public perceives this third party use you simply don't have a case to argue that the mark has been the exception to latches espoused by my adversary on appeal is really a public interest exception they need to show injury to the public caused by confusion not by confusion not just by likelihood of computer confusion and whatever various terms that have been used by various courts inevitable confusion latches may only be overcome by the showing of compelling public interest and marco's my adversary has not come close to showing that in this case what they're arguing is really likelihood of confusion and they say oh there's really in this case a really really strong likelihood of confusion i mean likelihood of confusion is where you groovy that there will be confusion and and i don't understand i don't understand where the standard comes from that you just enunciated that you can only show it as against a defense of latches one can only overcome it with respect to confusion by showing clear and convincing evidence of actual confusion such as to make the the the likelihood of confusion inevitable where is that come from there is one just one northern district  pinion which said that in the district judge adopted it but that's not that's not a standard that our court has adopted nor do i think it should be the correct standard so if the district court used an incorrect standard i mean i'm not saying it's incorrect i'm saying it seems to me to be incorrect if we would not adopt that as the standard what difference does it make what conclusion the district judge came to if he came to a conclusion based on on a standard we would not adopt as the as the proper standard apart from the fact that he also at the district judge also a discredited  find that the wrong standard was applied what i would say is that actual confusion question is certainly something that some courts including the northern district of new york in the harley davidson case came to the question we have a case in the ninth circuit basically the ninth circuit says it doesn't it's not about clear and convincing but it says that if if the person who has sat on his rights in or is is applicable that person can only overcome latches if there's a showing of you know injury to the public in the realm of public health and safety no but i mean citing what other courts have said it's a little you don't want to reward the party that is something else which is evidence of actual confusion can be very difficult to come by but there are circumstances in the trademark law where the proposition is so obvious that there will be confusion just because of the nature of the of the some of the usual factors when you look at the two how can they not be confusing and to say that one can't make a judgment that confusion is extremely likely  because you don't have evidence of people who come and say oh yeah i was confused which is hard to find but in addition there was evidence here of actual confusion in the district judge discretion and well the judge whether it's hearsay or not the judge was entitle to give a little weight and part of the reason if a district judge says i'm disregarding this evidence because it's hearsay when it's not evidence when it's not hearsay that doesn't justify the district judge giving it little weight that's not giving it little weight that's saying it's not admissible evidence so i'm not going to consider it well the no the reason he gave a little weight is because the individuals who let's say the there was there were six  n a four year period and then there were witnesses that testified oh i get i get a lot of complaints or i get a lot of i hear a lot of confusion the second category which are is essentially hearsay i mean how could a person testify some guy the point here is that they have to be confused about they have to look at the logo the key and say this book i am confused that this book is a marcos book that people came to ask titles that are associated with the liberal or because it's not surprising that somebody would go to a bookstore in the heart of their community and look for books that are associated with that philosophy but what they failed to prove was that there's any connection between that so called confusion and the actual logo at issue here there's no evidence in the case that anybody went to the bookstore because they saw the key the people who were supposedly confused in the community they were simply e mails without any explanation as to why what was motivating the confusion which is what the court said is an essential that is what the trademark is designed to protect the source identification random confused people and this is actually a fairly sophisticated community when it comes to this particular issue everybody in the market for these books for the most part knows about this dispute knows that there's two public publishers this demonstratives that they're my adversary showed you so my client is the one that has been publishing these books these are the seahorse the talks of the ready for seventy years using the keyhole with the authorization of the ready only started publishing these books in the late ninety's if somebody came if somebody is creating confusion here it's they started publishing books with the exact same color the exact same content you did well they went to the p t o in two thousand and one what happened is the for sent decades this community was treating these marks essentially like a certification mark where this mark designates the the imprimatur of the ready and the previous r somebody got clever and they said oh maybe we should file a you know federal registration for the mark maybe maybe they had some disputes with other people who were using the keyhole but they never went after my client and told twenty eleven even with the we were we were the ones that oppose the trademark they just filed for registration we opposed it they never sued us until it but that prevailed before the there's no i don't think there's a process would be to go into the second circuit i'm sorry going to the federal circuit or going to district court so they appealed in the way in a way that was perfectly there was a likelihood of confusion in this case and so in this case the judge trademark i'm sorry the trademark yeah there it's right and if you go down if you were infringing they didn't decide that you were an infringer of their trademark that's correct what would be the harm to you if you you began to use a trademark that was sufficiently distinguished from the other from the others so that the public could recognize that there's a difference these are yours those are there so i guess the best way to answer that iran is to say that they my client has a very strong religious belief that the the this logo that was designed by the previous rebbie that has been used on its own it's works of  show you was what we actually do which is inside the flyleaf of the book there's a water mark that says biology across it is what by my clients that identifies my client you use the logo but like i said maybe maybe hearsay is not not in the hearsay is admissible to show state of mind that's the exception that's been used so if somebody is confused that's a state of mind and they there's been a finding so other than that what's the standard in the area fusion actually likelihood whatever how do you frame what you think is the right standard well i would say the right standard is because the party has been abandoned if not then but as sat on its rights it is not no longer entitled for the court's consideration of its private interests the only thing that matters is confusion that affects public public interest and so i would if it were me i would adopt something along with the ninth circuit did which is saying is there any harm that's going to console a consumer in this case with these to a consumer not not ma said we don't care about them anymore as they sat on their rights a consumer who buys an identical book because of the logo the same exact content is not going to be injured in this case i would say no because in our view the district court got it wrong on reconsideration that the mark is not a strong mark by trademark by trademark standards not a strong mark if you were to win on that  know we don't know exactly what we don't agree that it was authorized at least in some cases these are certainly third parties would suggest not authors but even without that finding of their party usage the third party usage evidence was we think was sufficient but even without that you can still find that it's not a strong mark because the way that it has been used to start lee is to associate the work with the philosophy of the lobo the chairs and not with this organization other other courts as well that likelihood actual confusion is just one of the polaroids factors that the court considers and routinely the court finds and other courts district courts in on it that it's one of the factors in to the question of whether or not now all of a sudden there's this added hurdle you have to show actual confusion in order to show inevitable confusion that hasn't been decided by this court i acknowledge that well is it a hurdle or is it that way late yes that's the issue as we believe we do what this all circles back to in the end is that they don't really dispute that this trademark designates a single source they don't really dispute the power of this logo what they dispute is who owns it and he does it i don't know if you like these i'm to look at that that's exactly what he was disputing it he says it doesn't in any way direct the buyer to your company or your your ownership designates a single source what they're disputing is what is that source and their position is is that this acts as some kind of symbol of the rebbie a certification mark they argued to the board and not as a designator of marcos as a source of these publications that argument was categorically rejected by the t t a b categorically rejected by judge blocked in his initial summary judgment decision for seventy five years this is been used not as a certification mark as a trademark on books sold by my client it was registered for thirty years as a new york state trademark by the rebbie himself when he was president of marcos it has always functioned as a trademark their argument is we are in good faith there is a no no inevitable confusion because this is a religious that we should have in fact they say it is important for us that you're just about this question is how would you be harmed if you couldn't use this logo the way that they would be harmed is they can no longer associate their religious views with america was the official publication arm of the which movement and what we have addressed is the way in which these books are according to my client offensively produced by not acknowledging the rebels passing with the traditional of blessid memory that is used in connection with someone who's who's deceased so they want to associate their view that the rebbie is not to cease with this mark they acknowledge in their pleadings that that's what they want to do they claim a religious right to do it they're not saying that this mark doesn't designate a single source they're saying the source is the rebbie not marcos and what i'm saying is the court is bound to apply the secular law this as the t t a be found and as judge block initially  is a trademark it always has been a trademark and it designates america's publications in fact we didn't know until the trial itself involved that we were even going to be trying the issue of likelihood of confusion this was something that came up during the trial the trial was about latches and then during the course of the trial judge block in the colloquy that's been cited in our briefs said well wait a minute you know the doesn't everyone really know about this religious dispute doesn't everyone really don't they really have the ability to you know determine which book is yours and which book is there and he examined rabbi krinsky who is the chief executive officer of america's about this and  there are many who do know who can figure out if they go to this page you know five pages into the book and they look carefully underneath the keyhole logo and they see bob's name instead of the key hope remember for years these books were published under license granted by merit course on condition that they said you use the logo and you say publish and copyrighted by the key publication society which they change that what's the remedy you see here only to stop we didn't seek any past damages for infringement or what's the remedy you want us to issue we want you to vacate the district court's denial of our motion of our request for a permanent injunction and we want  position right you're on i mean intermediate to that is you want us to vacate the district the judge's ruling because of legal and and that case we would have to retry i suppose the question of latches but i think that as a matter of law congress this was this was this was a jury trial you know because we sought no damages you don't have to you know us to retry anything you you have to have the district judge apply correct legal as opposed to incorrect ones to consider with the outcome i believe that's right your honor i apologize i think that that's the way it would proceed in the district court on on the record already made on the record already made but we believe the court has the power in the right given the argument that this is inevitably going to be confused as a matter of law and that they've never operated in good faith that the district court erred as a matter of law in ever deciding that bad faith barred them from invoking the doctrine of latches when when you just said that do you mean erred in finding good faith or erred in thinking that that good faith what this court said in the army's case is if there's intentional infringement in deciding that bad faith should be weighed as a fact at all at all ok and then we think he weighed it improperly but the evidence here because they fact finding claim a religious right has fact finding was clearly erroneous thank you thank you