national products incorporated who was the appellant and cross evilly had the jury below been properly instructed on the law given their finding of willful trademark infringement a reasonable jury would have returned a verdict of a violation however unfortunately they were not properly instructed and they came back with a verdict of no w c p n violation but here we had a finding of trademark infringement which is a likelihood of confusion of a protectable mark and that's not contested on appeal that impacts the public interest absent unusual unforeseen circumstances that is the test in the seattle and diverse case which relies on the nordstrom case both from the washington supreme court and in seattle endeavors that's the only example of an exception to this general rule the trademark infringement does affect the public policy there's a public policy in not having confusion based on infringing trademarks and in seattle endeavors there is a very narrow exception where if there is it's said or unusual or unforseen circumstances and in that case it was the inadvertent infringement of a week mark that's the only exception that's been is inadvertent the opposite of intentional or is it the opposite of intentional or willful blindness under washington law i don't think we have a person definition of inadver i think you can you can see in the willful blindness context like in the global tech case it talks about willfulness being willful blindness being different from negligence or recklessness so i would really did find that it was deliberate right yes in this case and isn't that inconsistent with inadvertent yes your honor we think that certainly willful trademark wor and negligence so in that it goes on to talk about it willfully blind defendant is one who takes deliberate actions to avoid confirming a high probability of wrongdoing the th circuit in the hard rock case context where you are shielding yourself from knowledge you know i understand yet and i'm i'm totally on board with the lanham act here's my issue is i mean i've got a very careful opinion written by judge donohue that says you know washington law requires more john and i won't lightly disagree with the magistrate judge alone again but i mean he was very careful in saying you know it's not the same thing but he also assumed that the jury found on the basis of willful blindness and i don't think you can make that assumption that the jury came back with find on the basis of something all right but they could have found it i think the evidence is is is plenty of that they could have found on the basis of i think the record in the seattle endeavors cases is quite scant at least in the supreme court decision as to what the evidence or lack of evidence was as inadvertent i just say and the infringement was but even if you leave inadvertence aside your honor there's no evidence in the record that this was a week mark and seattle endeavour's requires both inadvertence and a week mark and in this case we have a likelihood of confusion of a trademark that was found valid by the jury so we have a valid trademark and that's not appealed that's not contested on appeal so we have a a secondary meaning it becomes a trademark and the jury found it was a valid trademark and that's not even contested your honor you seem to suggest you get at the outset that part of this problem arose because there wasn't a proper instruction but the instruction as i understand it that you proposed didn't provide any card valid if you will for this issue that we've been discussing so there was no proposed instruction a judge donohue to consider and what do we make of that i mean isn't it wasn't it incumbent on you to present the instruction that would have cleared up this concern what we said to judge donahue was not only the the four provinces are are met here as as normal nordstrom would tell you but in this record there is no evidence of a of a week mark or infringement and but he we made our objection clear on the record that he needed to tell them or he couldn't just give them the basic instruction armed of the c p a and let them try to sort it out when we have all this guidance from nordstrom and and seattle endeavour's and they weren't given any of that guidance the w c p a by itself is a very difficult thing for a jury to wade through in the context of trademark infringement they've got to piece together a lot and they weren't given that opportunity but is it your position now that the instruction you proposed he's continued to say that was of the appropriate instruction that should have been given i think based on the record it was the appropriate instruction but it put judge donohue on notice that he needed to tell them or in our discussions on the record we it was clear that we we were asking for more guidance and our suggested guidance was was perhaps something more than he would give but he needed to give at least the guidance on the four problems if you want to leave the th prong for the jury that was fine but we made a record that there was not enough guidance on the w c p n instruction so i think if you if you look at the seattle endeavour's case and what a we market means in that case it means commercially weak in that case there were many many apartment complexes in the seattle area that use the willows mark and when they use the term week mark in that case they mean commercially weak because willow has an arbitrary trademark that started out as a strong mark but through many other uses of willows for apartment complexes  was commercially extremely weak and that's what the court said but if you look at the record here it's undisputed that this hourglass shape had been exclusively used for twenty five years there's there's no injunction but other than that competitor in our content spend twenty five years of exclusive use and so you cannot have a commercially weak mark based on this record and what our kind argues and what judge donaghue said in his opinion was that well there was a patent protecting it and that's why you had an exclusive use of this mark for all these years but there's not a single case that says that your hours it's it is  reason for the exclusive use is not important or we have here is twenty five years of exclusive use of a trademark and lots of advertising lots of things to get the word out that this is a trademark and the jury found that an attorney's fees which is really what plaintiff is trying to get with this appeal this is that that's what happens if you lose on the day and that's correct that's what nordstrom help this case is about a very rare product a shape trade dress there are very few of them this is a very different scenario than a product shaped trade dress like the coke bottle it's very different than a word mark like gallo for wine for example and the unique nature of the rights and the issues here make it very different than the typical willfulness case or willful blindness case that at least for the period at the very least the period after yours you continue to market your almost identical e shaped product as i understand it isn't that how can that not be will well a couple things that i'll get into are con the entire time markets products very clearly with its own are contrary to market not only on the handle of the product but on the packaging case law that says that doesn't get you for months but there's also substantial case law that says that it does and i would certainly draw the court to the versa products case in the rd circuit which says that the defendants intent for purposes of assessing likelihood of infringement what other possible reason could our conahan had for copying the shape then wanting to piggyback on the goodwill and trademark of the other company because it's  of this case that the hourglass shape is not functional so in the wal mart case the supreme court pointed out that consumers are aware of the reality that most of the time product shrinks i don't i as there are different question what possible reason  shape shown in an expired pattern your honor and was completely unaware of the trade dress so that that is the reason they actually tried to stay close to that shape to avoid infringing on anybody else's patterns so before coming out with this product they specifically searched to make sure that there was no other patent protection that would impact this and intentionally huge close to the shape and that was shown in the expired patent so again the rd circuit held specifically that in product configuration cases you don't consider the defendants intent unless it is demonstrated by clear and convincing evidence and only where the products labeling and marketing are also affirmatively misleading and that  versa case has been cited with approval in the th circuit in the leatherman case which held that the defendants different labeling and packaging in that case prevented confusion it was also cited with approval in a couple of central district of california cases grup asked about the hourglass shape and you're this individual i don't know who it was but said well your patents expire and the response was we have other projects yes so you're correct your honor except that i don't think the hourglass shape was specifically discussed just the product as a whole and if you turn it sideways you'll notice it's not our glass shape our client never considered this product to be hourglass shaped the conversation said is that your product yes  well that's our product well not anymore your pant expired and then the response was well there are other protections other than just that patent that you may want to look into that it may be still in french so there was never any mention of federal trademark protection there was never any mention that the shape of the product was the problem and so there was really nothing for our content to take away from that that this is a federal trademark infringement case doesn't that slice of evidence support the jury's determination of the web or it i don't believe so your honor there was really almost no way sort of short of doing a formal patent search a reasonable juror inside the jury room couldn't couldn't have said did you hear about that conversation i had at the trade show these people knew what they were doing or at least should have inquired so again arc our condo did look at the patent and trademark page of the of the plaintiffs and on that page there was no drawing of the shape what there was was a a listing of eighty different words marks and deep in the middle of that list was the phrase hourglass shape to follow up on just talk of the question those are all good arguments to make to the jury and i suspect you made them in the jury didn't come out in your your favor but your position is that no reasonable jury could have found is this jury found and just as judge hawkins suggests there is certainly evidence in there you just aren't you don't think it's as good as the evidence you have but that's the point of the jury decision so i respectfully disagree your honor i don't think this the evidence is sufficient to show that in this context of product shape trade dress that the the information available to the point to to our con and provided to our con at the trade show was sufficient to put them on notice of the of of the trademark issue here and i think  there is ample evidence to show that this evidence was not that evidence about the trademark was not readily available to the public it wasn't clear on the  catalogue or advertising prior to two thousand and seven after it wasn't on the website at all until two thousand and ten after two thousand and ten the testimony was that there were twenty five pages out of the thousands of pages on the website that had any information about the trade dress and there's no evidence in the record that our consol any of those twenty five dollars pages and in fact when n p i provided a specimen from its website when it filed its patent application i mean its trademark application it included one of the ninety eight percent that did not have any there of information that the nature of this industry that the players are all very aware of what each other's doing and there evidence that indicates you know some on your side some acknowledgement from your own people will we have to be very careful because you know they've got tricks up their sleeve and that kind of thing i mean this is an industry where they're paying a lot of attention to each other so couldn't the jury at that point infer from just the relationship of these parties and how they're operating that they would have been paying attention to what the ip rights are well they were paying attention to the p making the appearance of the pump except for the label nearly essentially the same as the plaintiffs pump the defendant did specifically target consumers who were familiar with the plaintiff's pump and offered them a competitive option the court then held though that the use of a different logo on the on the pump itself and on the marketing materials in them and the literature avoided any confusion but the court and that's exactly what our condit it used to separate name very clearly on the handle and on all of its literature and on its website and on its packaging but i think importantly that same court noted that the plaintiffs complained about slavish copying of the shape to the jury had a certain a motional appeal and presumably swayed that jury because no one likes a copycat and that court actually suggested that the issue not go to the jury of that intent issue for that reason and i think that's what happened here i think the jury was swayed by the idea that our con intended to make a a directly competing pump that looked very similar to their palm but that was very clearly labeled with their own brand and there was enough evidence from which they could make  yeah i think i think though that they could have been swayed by the copycat argument your honor and i don't i don't think this supreme court made it very clear that copying of expired patents is legitimate and that absent any other kind of protection copying is legitimate and i think and i made that argument we we did your honor but again the the potential prejudice of the copycat thing i think was an issue here and  i want to address a point that was brought up earlier about the after filing continued sales of the product ok so st of all the plaintiff waited twenty months to sue secondly they never moved and they never moved for  judgment there isn't the defenses in this case were not frivolous they went all the way to the jury even after a rule fifty motion or con as the district court found was in good faith after the finding of the complaint they were trying to settle it they tried to redesign their product even though they didn't believe there was a problem to avoid any issue and this isn't a a word mark case they couldn't just change the wording on the packaging they couldn't just change the website like they had to redesign the entire product and test it and then manufacture more so that timeframe was actually very short from the time the complaint was answered to when the sales ceased your honor and i don't think that i've never seen a case that would find willful infringement on that basis and finally the  the complaint itself alleged willful infringement and so that wilfulness and that complaint have to be based on pre filing willfulness and i just don't think there's sufficient fact in the record to show that i think the problem here is that again there it's not on the package it's let me just back up slightly and just talk about the fact that this is not a very well marketed trademark because i think it goes into that the weakness point of the w a as well basically again are concordant learned of it from the pan and trademark page there was only one in forty of their web pages had any information about it the packaging the product and the labels all failed to call attention to the trade dress n p r primarily focuses on these pocket brochures that it says was handed out since two thousand and seven with all of the the relevant products but there was ample testimony at trial it in the in the little brochure that comes in the product packaging and they didn't happen to click on the one out of every forty pages that had any information about the trademark they would have no way of knowing about this under those circumstances i just think it's it's unbelievably burdensome to consider them a willful trademark infringers especially when the warning at the trade the alleged warning which was may or may i don't think that's sufficient to put them on notice of a trademark when they'd clearly been discussing a p and at trial mr carnevale massaged his testimony to try to make it sound a little more damning but i mean that just shows how weak the original the original discussion was so so i just want to make a couple more points that i think there's a real policy question here with this willful infringement case intellectual properties an abstract man made thing it's not it's not like a piece of real property with a clear boundary under these facts a competitor like our con who's trying to copy an expired patent should not be deemed to have independent knowledge of all of n p r s intellectual property intellectual property should not be turned into an elaborate game of gotcha and if you read how i dealt with their intellectual property in the supplemental excerpt of record pages five to seven you'll see that's what this was the court can easily find on this on these facts that this is not willful infringement also i think  because as i'm arguing the infringement was inadvertent and because of the lack of marketing this is a very weak mark i think the court there's ample evidence to support the court's conclusions of both of those things i think  the court to keep in mind that n p r never presented any objective evidence of strength of the mark like a consumer survey in fact n p i tried to proffer the testimony of an expert on consumer recognition and that expert was excluded by the court because there was no while n p i did offer some self serving testimony that members of the public recognized ram mounts other evidence suggested that the shape did not have marketplace recognition and there was at least one witness that comes to my mind this witness joseph todd ra who got up there he was he was in the mounting industry since two thousand and five he had been a long time customer of n p i and he testified that he had no idea that n p i had a trademark in that  i relies on this this prior case against gambler johnson and the fact that gambler johnson settled somehow show that the mark has a recognition that was a primarily a patent case the patent that now expired was still in force back then as part of a settlement yeah the other side agreed that everything was was valid but there was no determination by a fact finder there's never been any any objective evidence of strength let me close quickly if i beg your pardon with two points so one even if willful infringement is is found willful infringement does not mandate a violation of the w c p a i just want to call the court's attention to the safe works l l c case which was cited by n p i even though the court found willful trademark infringement of a word mark in that case the court did discords to defend its probably you are in your summing up so some of us just that case even though there was willful infringement hours the standard here on the willfulness issue is was there substantial evidence supporting the jury's finding of willfulness and as we've outlined in our brief there is there is plenty of evidence on which the jury could have made their finding and and did make their finding i think the question as to post complaint going forward which is the damage period the judge last nick limit of us to there's there's no doubt it from that that day forward i think the the interaction at the c s show in las vegas in two thousand and fourteen i think a jury could base their decision solely on that interaction and i think  there mr part of ali who is the president of n p r has said we have other forms of protection and we have patents and there's trademarks and copyrights so president and c e o of our con admitted that he was told about that interaction he was not there in person but he didn't dispute that interaction went on and he acknowledged that it went on and that he was told about it i think another thing that the evidence in the record establishes is that our common wealth willfully calculated the to exploit the advantages of n p r as established mark there were there was evidence that they considered the product the shape product that they came out with to be compatible similar and nearly identical in appearance and quality to n product they could charge a higher price and they did in fact charge a higher price above their normal margins because they recognized that there was there was value that n p r had created so i think that is is evidence that the jury could have relied on there was also lots and lots and lots of evidence that the jury could have relied on as to how besides the tradeshow are kind of got knowledge these these pocket brochures with the trademark i'm talking about how it's distinctive unrecognizable are right on the front of of these pocket brochures which are included in a plastic bag in every single product that m p i sends out and they it's their primary vehicle for getting information out to their customers and there were over ten million of these things that were sent out before trial and are kind of knitted going to the trade show booths of n p i admitted picking up brochures they admitted ordering product from n p r i'm mr bush himself said he did it two or three times in the year that they copied this product and there was testimony that these things were in every plastic bag that was shipped so mr preserved couldn't say that he didn't receive you know this notice so the jury could have been did rely on this information and this evidence and there was overwhelming evidence that there was