pending a case called star athletico versus for city browns and the issue there is going to be to determine whether a feature of a useful article is protect ball and it's somewhat similar in that it involves athletic uniforms and a pair of geometric pattern of stripes and chevrons and so forth is there any reason in your view why we change how we might analyze the questions in this case and therefore we should wait and hear what they have to say i in my opinion number one the evidence is included in the motion and we could explain it we have more of this is we can present during the trial yes you're right on this point forgive me for interrupting but it's tough because this is photocopied and it's black and white we have a color copier but  there's that you have a footnote in your brief brief on number four there's a footnote that talks about printed chiffon number one that this pattern i think this and here's my question yes i think the large what appears to be a large black triang triangular yes field is actually two triangles as i understand it and maybe when you come to the podium you can let me know if i'm wrong but i'm understanding it to be two dark blue triangles and it matters because if if so then i think it's more similar to i would like to reserve some time you may thank you very much have else which is whether there is any reason for us to await the supreme court's decision and start athletica before we analyze this case so i know your honor because a striking similarity is to one of the piece worried the circumstantial evidence tending to show the excess and then that's because and copyright itself is not it issue here that is correct you ok so your everybody's agreed that the copyright registration is a triangles which is not a protective wall design protective of copyright let's suppose that i thought that there was a striking similarity doesn't doesn't that add to the idea that if your client had access that there might be an inference that there's th access by the fashion life as well as tony can't contract with designed by nature to print that design the question is did the president does the plaintiffs present the circumstantial evidence to show that the fashion life in fact the one that who manufactured the garment and sold to the tilly's had an axis with the certain design there is no evidence whatsoever present by the police to your contention is that the striking similarity is just a coincidence getting this is sort of part of judge by this question my understanding from the footnote is that in the middle image printed to fund number one that the footnote tells us that that's actually there are two dark blue triangles that we can't really see in th so even though even though the border it's got it's consist of all those little tiny triangles and we've got these larger triangles with smaller triangles and you've got on the angles you've got four four triangles going down the angle on both of them that that doesn't strikingly similar because we're missing some bars at the bottom what that's that's the argument that we made and then this report agree on that issue we are reviewing to know what the district court passes out of the picture when we're substantial similarity between the two designs the question is whether or not the fashion wife and tony came in had access to the design and the question is did the plane to produce any circumstantial evidence link the between the eggman design and otherwise we're left with the conclusion that this was entirely coincidental i know that's that's that's already been i just the size is the product of two independent minds thinking about triangle plaintiffs had an opportunity to present come up with an evidence your honor the only evidence to produce was to the fact that mr tony kidd is the president as well as owner of the two companies of two companies one of which had access to these designs another one of which produced access to this design you honored the printing company has a tons of the samples watches every day so i don't know exactly whether the tony came in fact they knew about this not the design based on their receiving more than one hundred or maybe thousand designs per year oh it doesn't prove it per se but we're in summary judgment and the question is whether there is a permissible inference reasonable and for us have access to  to the striking similarity to create an inference of copying what i believe that that's just a mere speculation this one but to my original question which is if i thought that there was a striking similarity and if i thought a jury would find there's a striking similarity doesn't that add if kim has some access but it's not out of the realm of possibility kim's not entirely independent of this design  he owns a company that had access to this design and all of a sudden it shows up in another place that kim holmes if i thought there was a striking similarity here doesn't that sort of add to the idea that there that there are that the circumstances here even if they were implausible let's say not not probable might nevertheless have occurred but the question is a plaintiff has shown that evidence that in fact the mr tony kin had access to that or knowledge about that ok they had asked for the court asked entered against her the surrounding right so what about these is it is it your argument just to make sure that we're clear her i'm just looking through the excerpts of record and counsel just referenced you know the record of course these invoices and and the documentation placing the order in china for the production of this fabric is it your contention that these were not in the trial court record i believe it was your honor ok so what's in then getting back company in order that certain garments during the partial portion partial portion of the garment is appearing that design the question is whether the plaintiff has shown the evidence the linking that mr tony camp knew about that i mean design an order you know the question we keep asking it so that but we're looking to you for an answer and so here's let me let me just take one more run at it if we disagree with you about striking similarity what is your best argument in favor of your orders and the fact that he owns both companies but that's just mere speculation the fact that he only thought he owns the companies is not speculation and the fact of the timing on this is not speculation but the question is whether there is a create a triable issue of fact that's the only question we don't have to decide for sure that there was access why isn't that a permissible inference but i don't think that was permissible  that would help me get an idea of how large these two companies are how many people work there we don't have that evidence in you just i want to take of these two things and then make it the same way otherwise and then it was made that way so to list government on its own may arguably not be strikingly similar but after seeing wesley resign there was exactly the same and then that explains the little changes in the desert bowing to missing elements so that's probably a logical inference not speculation and also yes you are counter to the trial court have any evidence about how large these companies are how many people work or potential failure to eat food access and we could all kind of explain where we are coming from about access issues and that was never given it was a big surprise when the some ways it was granted against us because there was no