morning his fifteen dash thirteen seventy three digital satellite connections versus dish network mr overholser if you may please the court my name is paul over hauser and i represent the a digital satellite connections or d s c i think this is an unusual case what makes it unusual is that the response reef of dish essentially concedes or at least not does not  the main argument in appellants opening brief that main argument is that the critical evidence that the district court revised on in that summary judgment ruling was improper summary judgment evidence that evidence was from the statement of dishes bruce warner and he alleges his statement that during two thousand and twelve three former dish employees contacted ms king and demanded a transfer of the domain name dish net dot com i want to stop in and start interrupting so early but i don't i don't know that i agree with your premise which is that they just simply concede your argument my understanding of what's happened here is you're suggesting this is twenty twelve the man was in appropriately relied on by the district court and they're suggesting based on some pretty specific language in the district court's order that the district court didn't even end up considering the twenty twelve demand instead the court relied on twenty thirteen a man and a no they didn't address twenty child demand because it's really not relevant because the district court talked about it but then realized instead on twenty thirteen so i read their brief to then talk about the few issues that she raised sort of interspersed in your brief you also challenge the reliance on the twenty second team demand and so i call the january twenty third dean email the point i was trying to make is that there and i'll discuss that momentarily but that that argument does not deny the fact that mr warner's declaration was improper summary evidence the problem with dishes argument that made it summary judgment brief is that it never designated the january twenty third team email as a summary judgment evidence this rely on that twenty thirteen now well my recollection is that the district court said it is undisputed that i don't have to do this re judge do not have to get into whether or not there was a proper demand in two thousand and twelve because the parties agree based on the explicit statement in a response brief that there was a written demand in two thousand and thirteen and here in the so not only there a question about forfeiture in my mind but there's a question about waiting for because you're asking us to overturn the district court's finding the district the district court's judgment based on reliance on what you said specifically to the district court that there was a written that they had in two thousand and thirty there was a written demand in twenty thirteen but that demand was not before the court in the summary judgment that's not the argument you made a lot i don't think because in your motion for reconsideration i don't think this is pointed out in the briefs that you specifically say anath in the court to reconsider its isn't there there's a paragraph in there talking about twenty trial in the lower court the lower court had relied exclusively on the twenty thirteen demand and now you're here telling us that you want us to think as an act as though the district court relied exclusively or at least mostly on the twenty twelve the man which you've conceded did not occur and and i don't think you even made this argument in the district court that you're making now i'm not sure you have made it to your point supply briefs in this case motion did you say you can't rely on that e mail because it wasn't even presented to you i don't recall precisely i don't think we did bad but the point is is that a summary judgment wrote motion summary judgment ruling is to be based on the evidence that is designated by the parties and dish never designated the january twenty third gene in l we never had an opportunity to argue the relevance thousand and thirteen dish made a written demand again under the heading of that dish failed to not substantiated that it had requested a transfer of dish net dot com before two thousand and thirteen so maybe you know in an academic theoretical sense maybe you're right dish didn't present that argument but you did you told the district court to be clearer you don't deny that after a suit was filed in two thousand and thirteen they can't the king made a written demand in the whole context of the paragraph was about transfer of dish net dot com but we did not concede that that obligations survive termination of the agreement but up ms king at the end of the expiration of the agreement did not have any obligation to transfer dish or the dish net trademark as i read the district court order district court listen least that you're right that the right of the defendants in force in terms of trademark license agreement survives expiration of the retailer and trademark license  agreements and that wasn't and you point out that under section seven of the licensing is obligation to provide the expiration terminations she's referring to the trademark license agreement which apparently is incorporated within the the retailer agreement and i didn't see that you challenge that finding anywhere that there was there was a separate provision that was broader what she was saying and of the trademark license agreement that that survived the expiration  agreement and you don't seem to challenge that so i don't understand why now you're arguing the expiration of the retailer agreement was material it was a get it was just material because once it expires dish no longer has the right or the ability to impose but that's not true under the trademark license agreement at least that's what the district court found and you don't challenge that in the trademark license agreement was part of the retailer agreement i don't know i didn't see that you challenge that retail agreement in t l a went into effect dish net was not a trademark of dish it was a trademark of cathy king and she had not registered it well they had to get a trademark in dish and dish net right who didn't who say your adversary well fifteen eighteen months after the agreement went into effect but the trademark license agreements  created the dish net trademark rights over her course of the prior twelve years by using that trademark by building her customer base to eleven thousand by obtaining fifty our customers in all fifty more in dish or dish net do you agree that the opening sentence of perez constituted a warranty that can be taken not previously registered anymore that contain any part of the  she took over the business after he died and was the successor to the to the assets that are used including the dishnet trademark in the dish net dot com domain name but the bottom the company marks that they were trying to operate under the dish network and to stop interfering with dish networks efforts to in the trademark office and i'd like to focus on three points this morning the first is that on appeal  the plaintiffs are course you're limited to their opening brief and in their opening brief in terms of the arguments they raise they have not disputed that if there was a request to transfer the domain name in the marks then king was obligated to transfer them the dispute that they try demand being made in january on january thirty one two thousand and thirteen their focus on the word declaration is really beside the point because as judge back recorded out the obligation to transfer survives the termination of the agreement and the players have a challenge that ruling of the district court on appeal so that bet is the law of the case i don't think they can say they can now change arguments and try to challenge the survival issue so given that a request to transfer could be made even today and under the the agreement it would have to be honored so the question then is when was it a request to transfer made and i think that there are really three things that the court could hang its hat on in order to demonstrate that request was made the first thing is the incorporated form it is the dish network marks including dish net dot com so at the very latest when the counterclaim was filed in april of two thousand and thirteen they obviously knew they requested been made now it's true that you haven't argued that to it until just fish made a written the man and you infer and i understand how you inferred that was referring to the earlier sentence about the transfer the demand the transfer the fishnet dot com domain name but does that necessarily does that concession for summary judgment purposes that there was a twenty thirty and a man does that concede that that the man was adequate which seems to be a a big part of their complaint now there are was in effect that was their argument they said yeah i demand is made of twenty thirty but that was too late so given that they were wrong on that legal point as judge that reported out the obligations survived the concession that the demand was made in two thousand and thirteen is dispositive so i think that i think the essentially so there's a direct there's a there's a request there's receipt there's actual knowledge at least by then that the request of the mayor and once you place that demand into the record there was an opportunity to respond to the appeal that if a request was made they have to transfer it's an it's unquestionable that or request was made and that triggered the obligation and and as of those times it's also undisputed that appliqueing was the sole author and the sole member of only if she had an obligation to return the domain name of the trade mart to do your client and before january a month before the january thirty  had done nothing wrong in so you know whether they were a bona fide purchaser or not can't be seen and done nothing wrong and d s e have done nothing wrong is you that runs through the the two groups of issues on appeal and that's the theme of unjustified excuse miss king says sure i had to transfer the domain name in the pretty nice if you don't ask i didn't hear you when you asked in two thousand and twelve and she says i'd like to be able to which is referenced in the papers there that that that has a note a non disclosure obligation on our part and involves sensitive information that was paid for particular intellectual property so all of that other items an issue that's the most important to us thank