good morning your honors michael culver on behalf of poland's plaintiffs the g i sports entities i would like to reserve five minutes for rebuttal may please the court this appeal is directed to a very narrow issue did the district one would think that that's the year fifteen minutes one would think that's almost the end of your argument if you know what i mean it's yes that's that's been my approach to this argument is reading that that opinion leaves  scratching our heads a bit because the court acknowledged that we mentioned it acknowledged the citation that we used to support it although cited only the district court and not the internal cite to park in fly v dollar park and fly which was the underlying authority for the proposition and then disregarded it saying that we had somehow abandoned our theory of of acquired distinctiveness so in fact your arrived i do have fifteen minutes and i'm and i and can to consider the other factors that are involved in whether to issue an injunction and my question is if we agree with you on that legal issue shouldn't we really mandate for the court to consider the remaining factors in the first instance your honor that is that is our position unfortunately because none of the other factual findings which are factually intensive under winter's the preliminary injunction standards as well as likelihood of success on the merits which includes likelihood of confusion which is under slick craft factors although the judge did find have a finding of fact that there was that defendant's trade dress was very similar  to the registration and to the plaintiff's trade dress it did not go through the rest of the factors under likelihood of connally would have to say i believe that's correct your arms so again coming here both your honor in both places there was very little attention paid to what we view as the issue on appeal the issue of did g i established that its mark was distinctive and doesn't the incontestable registration not only presumptively but conclusively established that fact and move on instead they created this david and goliath story which really is inaccurate both on the findings of the district court and in terms of what actually happened in the underlying case which is somewhat irrelevant to the legal issue as well i agree your honor i think that the only reason i raise it is because this is our client is a company that's been around for over twenty years through its predecessors and interests and is a stablished a very significant position with this premium product it's known throughout the industry as one of the that perhaps in a fortunate commentary it's actually a fun sport having represented this client and actually participated in it it is a fun sport and they have all kinds of companies like illinois i knew all about it i'm sorry good one i i i be remiss in not also hitting our second point which is that even apart from the conclusive evidence which should as you point out and the inquiry here we also submitted significant evidence and secondary meaning in fact more so and as a trademark lawyer it's hard to find this strong amount of evidence that we submitted to the district court which the district court didn't even acknowledge that we had over twenty years of conclusive continuous and substantially exclusive use that there were one hundred twenty five paintball fields that have been using this trade dress product for over ten years then in two thousand and fifteen alone there were two hundred fifty million paint balls with this marble trade dress on it and also the company's significant efforts to police its mark do you think week the panel  can decide the rest of this case now without sending it back i mean just as a matter of legal principle is it something that we can do and is it something we should do the  clearly love for you to do and in fact given the delay that the appeal is caused you know the idea of a preliminary injunction this case has been pending for almost a year now so that would be certainly desirable from our our standpoint i think the likelihood of confusion factors are pretty well briefed and are in the record so you've got the judge has found on the most important issue which is that the defendant's paint ball looks a lot like the registration  you just briefly respond to that i'm just curious about that yes your honor couple of problems with trade dress registration in that you've got a two and a half by two and a half inch line drawing to represent a three dimensional design so there are some inherent limitations in the ability to depict the actual trade dress at issue that is why the trademark office requires a written description and if and the written description in  fact is part of the registration and can be used in reviewing it which says that it's contrasting colors that are blended randomly together in a fanciful design which which together  does provide a fair amount of certainty about what the trade dress question is and stepping it aside from the scope of the claim the registration itself is at least one embodiment of the trade dress and so that is conclusive evidence of the distinctiveness of our client's trade dress and then you could work go on to likelihood of confusion to see whether that registration the registration the embodiment in the registration is likely to be confused with the defendant's product either way i don't think that that voids the issue and avoids the impact of the conclusive evidence free support by the registration incontestable registration if there are no further questions i will reserve the balance of my time i do that thank got as the district court's ruling as observed by judge sac does not articulate why it discounted the argument that the authority although cited in the form of not  simply did not explain that and so but we must assume and i think it's a reasonable inference that it was read and considered nevertheless the district court goes on to express concern about the prior statements constituted admission that there was no secondary meaning now at the time of you're talking about the earlier case yes i am but how is that even relevant because the earlier to say this came at a time that predated the acquisition of incontestable status so how could they have argued in the earlier case because there's a time requirement involved yeah so what were they supposed to say and a couple of years ago somebody can contest of all i mean that's the was not relevant so i don't understand why that case even matters well that's clear and thank you for the question that at the time of oral argument with the district court my pony cleared up the timing issue quite a le there are exceptions the incontestable registration under fifteen u s c one one one five b nine there are a number of equitable exceptions to and what's your what do you think the district court reliant on among those equitable are exceptions we argued to the district court regrettably this report did not expressly reference these arguments but it was argued at the time and contained in the brief specifically that the found i maybe just remembering yes but i thought the just report found that there were in fact non functionality here functionality in the context of what is needed to show a preliminary injunction for trade dress it did the district court did not express fully address whether the extent of the attempts the argument made by myself and my client the attempt to extend the life of those patents beyond the patentable life through a trade rested not consider that argument at all in the in the ultimate ruling but it was made to the court and it was made to the court and emphasized at the mark has secondary meaning by default that is the case and so you're saying you're arguing that there's an exception to that right correct and that that's what the district court must have relied on even though he didn't say it and maybe not that he misunderstood that concept  do you think the real issue for us here is on appeal is it to determine whether this marble lies or trade dress is in fact referenced in the one on one registration the  brief i don't think is our primary argument judgement i think the primary argument is that the equitable nature of the use of the trade dress regime to extend the patent is itself an exception to the contestability registration statute and the reason i say that is because the district court found its ruling and i have to concede as i must that the reply brief noted the express finding by the district court that question the purpose and the reason that this equitable argument can be made and was made to the district court judge was that the nature of a patent is to make the thing formerly covered by the patent public property to extended in this way beyond the life of the patent is inherently an equitable determination report had reviewed that in the form of the opposition brief in the evidence and despite the citation to the case relying on park and fly expressed its reservation that the that g i sports had failed to satisfy the element for secondary meeting let's look for the question your honor i have no i don't believe we do thank you honor just to address the issue that this idea that that somehow the district court was ruling on these equitable defenses when in fact it held that it was the lack of acquired distinctiveness and the absence of proof on acquired distinctiveness it is a disconnect for me and i don't know how you would infer that and beyond that i think that any of the equitable defenses that  would require significant fact findings that are not made in the decision are not even alluded to so i don't believe that that can prevail but what if we also have a general principle that we can affirm a district court on ground that appears in the record that was are you to the district court and yeah other that this was hard to the district court so what is your response to that concept and also it's in our briefs we did address these aquittal arguments and the the it's really a red herring this whole idea of patents and pat exhaustion what we're talking about is trademark rights trademark rights are a completely different animal from patents they serve different purposes trademarks of white consumer confusion so when a consumer goes to a paint ball field and has a good experience with particular paint ball and they recognize it coming to the trade dresses coming from a particular source they can get that paint ball again and not get a cheap imitation and be confused so that's the purpose of trademark law the patents first of all don't mention paint balls the paint the patents that issue that were discussed in the brass eagle case in two thousand and two two thousand and three had to do with a manufacturing process that was for pharmaceutical pharmaceutical or other gel caps so  t included paint ball but they included any kind of encapsulation you can make the marble the registered trade dress and our client has by means other than the patented method you can make it through printing and you can make it through other ways so that's really i think a red herring to even go down the patent path and i don't think the record supports that defense even if you were to wade into those arguments and review the record from the argument  before the district court i do want to go back to two points the earlier question about the distinction between the drawing of the registration and the actual peoples and selves when you register a trademark you have to provide a specimen of use and the trademark office reviews that specimen of used to make sure that it conforms with the registration and the test there is whether there's a materially equivalent commercial impression so as marks evolve impression and on page two e are page forty one of the record in that brief there are the three different times in which g i had submitted specimens of use to the trademark office first upon its original filing second on its six year renewal when when it tainted incontestable status and then last on its ten year renewal and you can see there is some some variation between those specimens in each case the trademark office accepted that those specimens fell within the bounds of the trade the registered trademark so i think again the fact that the judge had an actual factual finding that the apex balls look like the strong which we have evidence of strength of the mark we have evidence of the similarity of the marks the marks are identical there were channels of trade are identical and so it wouldn't even be a stretch for for  finding on that and send it back that the proofs on the comparison of the harm were not as well developed but there was a record for them i mean this is a