for failing to meet some unknown an arbitrary minimum sales quota and because he feels he uses trademark commerce despite evidence of out of state transfers of his products and sales to out of state buyers the rd assignment of air concerns the court's decision to grant kraft time says motion for summary judgment dismissing mr perry's claims for trademark infringement based on a single digit of confusion where all of the other factors weighed heavily in mr kerry's favor by way of a brief summary mr perry's a small business owner who created and sold a ketchup in manny's condiment sauce under the brand name he applied to register his trademark in registered back in two thousand and seven with the united states penetrate her his trademark rights date back over thirteen years to his long standing rights to this measure trademark sauce which is marketed in sold under confusingly similar name match up mr not only did they sell the product under this confusingly similar name they took mr perry's trademark registration and used it extensively in their advertisements to sell their own competing products worst of all they did this with prior knowledge of mr perry's federal trademark registration mr perry believe he had a good idea how many customers there are either in louisiana or around the country who are familiar with or with your client there is no survey evidence of the how pervasive  on the internet he has advertised it on multiple domain names he has put out its facebook status he has it in his in his hotel he certainly has customers and he has knowledge of his product of course it is pales in comparison to multinational corporation like kraft times but it is the small business owner and small business owners to consider trademark protection he did what he was supposed to do he went to the trademark office he registered his every new product that wants to would not be entitled to trademark protection and still it became pervasive in the minds of consumers that's why there is extension in trademark law among likelihood of confusion versus dilution small business to certain titles to attempt to sell their products to to claim trademark rights they don't have to show that their product has become ubiquitous in the minds of consumers they do again for don't lucia this is not a dilution this is a factor that we did not address is actual confusion and that is do so based for the court's decision to dismiss mr perry's claim i agree with you you don't have to have actual confusion out of those but i thought you do have to have is aware of the previous brand again i think that addresses the issue of actual computing which we are conceding we don't have evidence of we don't have to show again the market is ubiquitous in the minds of consumers that would be a dilution  her trademark infringement we just have to show likelihood of confusion by showing the similarity the marks the similarity of the goods here they're virtually identical for match up and match up they are identical so we have the identical use and i want a very broad ok then i think with what the court is asking i'm understanding correctly is that essentially a reverse confusion where this is a situation where you have a smaller competitor who is not as well known in the marketplace a larger competitor comes out takes the smaller competitors trademark and now people assume that you the senior producer of a mark is the infringer or that their products are somehow fraudulent that's the situation we have here that's what we play  and then you know again we don't have to show that mr perry was making sales comparable to kraft times in order to make this allocation mr perry has the right to put his products on store shelves and now we have a trying to put on store shelves prior to crack times taking his trademark that's correct and returning back to the issue in the st segment of error on many misuse this is an affirmative defense has to be specifically pleaded cratons didn't plead the affirmative defense they moved three days are closer discovery to try to did not ask for judicial review of it from the trial court instead of the trial for granted summary judgment on an affirmative defense that was never actually pleaded in the case even if it was needed to minimize uses improper in this case what are the minimum number of sales sufficient to sustain a federal trademark which street is it a specific dollar amount is it a sales volume is it a comparison of up stales versus other that's not a law and you know there is no defense that you did not make only five use of more but that's also not the court rule but how do you know how do you judge the small business to judge it as against other mom and pop shops or do you judge against craft times against multinational corporations if there are questions who obviously are not a big company i get that you're going to be company but if you're going do anything to actually try to build this brand other than just selling and your honor may please the court mr perry had more than ten years to make bonafide use of his mentor mark he had ten years to learn what laws govern the sales of food products and make sure he was in compliance with them ten years to reach out to retailers and try to get on store shelves ten years to advertise market promote his products he did not notwithstanding help characterizations of what was done the actual evidence shows that for ten years mr perry did nothing more than make an occasional to walmart to buy condiments and spend a few minutes in his kitchen putting those condiments into a half dozen plastic squeeze when i say he did it occasionally he did it on average of once a year once a year he filled six plastic bottles with condiments that he bought from walmart stock much of labels on them but one or two you want to table in his motel lobby and then call it a day and you can see what his lobby table looks like it's in the appendix that page two thousand two hundred and ten it's a little handmade handwritten sign that says mecha five dollars surrounded by notices about checkout checkout times and keep policies that is not a bona fide use of the metro are in commerce that can support federal trademark registration this is the question about small business owners versus big business it's a question about making bonafide use of a mark t commerce was he really is there evidence to show he was really trying to build a presence a market presence for the product and there just isn't trademark rights are established by use not by registration and the use as your honor has recognized must be a bona fide use made in the ordinary course of trade and not made merely to reserve d a right in a market and if you fail to do that for three consecutive years that's prima facia evidence that the mark has been abandoned and that's grounds for cancellation even up  trademark now what constitutes bona fide use and your honor this gets to the point of what was pled we pled that he had not been using mark in commerce over five use of the mark in commerce means that the use has to be lawful it has to be in interstate commerce meaning that it's marked goods that are being transported in sold in interstate commerce and it has to be done in connection with the goods that are recited in the registration and mr perry did none of that if he were selling match up  interstate commerce as counsel now claims and as mr perry claimed only in an affidavit that he submitted after he had been deposed if you were selling much of interstate commerce then he was required to comply with federal labeling laws and we cited the specific regulations on page twenty six dollars of our brief but those right at those laws include the requirement the label on his products clearly identify the manufacturer of the product by name and address a food product that does not have that information on its label is deemed misbranded as a matter of law and its sale is illegal and i would refer the court they are to twenty one u s c three hundred and thirty one and twenty one u s c three it has long been held by the trademark to an appeal board that to support a federal registration use of a mark must be lawful the th and th circuits have affirmed that rule as have just for courts within the  vitamin supplements that did not meet federal labeling requirements and the th circuit explained that the reason why use must be lawful and the reason why registration should be cancelled if you use is not lawful is twofold and this is now quoting from the th circuit st as a logical matter the whole otherwise would be to put the government in the anomalous position of extending the benefits of trademark protection to a seller based upon actions that the seller took in violation of the government's own l it's doubtful that the trademark statute passed pursuant to congress's power under the commerce clause was intended to recognize shipments in commerce and contravention of other regulatory acts promulgated by congress under that same constitutional provision nd as a policy matter to give trademark priority to a seller who rushes to market without taking care to carefully comply with the relevant regulations would be to reward the hastie at the expense of the diligent and the trademark trial an appeal board has repeatedly approval for the proposition that use of them are must be lawful to support a federal registration in this case it is undisputed that mr perry's labeling has never met the requirements of federal label used mark has never been lawful the reality though is that mr perry was not selling much up in interstate commerce he produced receipts from thirty four sales over a period of ten years none of them reflects a sale t louisiana resident he testified and sorry but in his deposition that he has no records to show where his motel guests reside and his attempt to cure that deficiency is simply with the post deposition declaration where in which he swears that he knows he saw match up to someone from texas and from other states he doesn't say he doesn't say how he knows that they're from texas or from some other state that affidavit is it lacks foundation it's not admissible evidence and it can't be used to defeat summary judgment his failure to use the magic marker in interstate commerce there is no evidence to show he used it in interstate commerce and that's a separate ground and insulation of his mark the requirement that a mark has to fifty or sixty bottles in all so that's we're talking about an average of six bottles a year that he made which either stuck in his a motel body or used himself or gave away it all series your honor i made more loads of sourdough bread in the past year than mr perry has made of matching up in each of the ten plus years that he has held registration for that mark and i can also tell you that it's probably taken me for longer to make each of those loaves of bread than it took him to mix a couple condiments into holes in his kitchen ok i'll keep going but after ten years in your honor judge how you've correctly noted mr perry made no effort and his counsels admit no effort to try to get his product on to store shelves until after his two craps times and saw that we had fled assuming there were a bona fide intent to use you get to the likelihood of confusion and whether there is a meaningful risk that consumers are likely to be used and here we just never get there because there was no ever made i'm and this court actually has held in the action in establish brand awareness and goodwill and it's more that when there's no goodwill left to be associated with the product and no reasonable prospect of it the trademark symbolizes nothing it's been abandoned and the registration should be  because the district court correctly held that mr perry's federal registration should be cancelled enjoyment claims fail accordingly because he only pled infringement of a registered mark he did not plead infringement of an unregistered more so he has no registered mark he has no basis for claiming infringement but even if he had asserted infringement of and unregistered mark the district court correctly held that no reasonable jury could find that consumers are likely  confused as to the source sponsorship or affiliation of the parties products and again your honor you correctly know that that's the kind of confusion we're looking at are consumers likely to be confused into thinking that one party's product is made by affiliated with  sponsored by the other party in this case you always as this court has repeatedly recognize you have to consider the marks as they are actually used in commerce as consumers actually perceive them in the marketplace here obviously you have the problem possible for consumers to encounter the party's products just looking at the products side by side as shown on page thirty five of our brief they just report properly recognised this the marks in their entirety are completely dissimilar they're used in different ways they are the bottles are different the labels are different the if you want to look at the word marks themselves the word marks are different but looking at mr perry squeeze bottle compared to a bottle of kraft heinz mayo chop it just report properly held that no reasonable jury would find a likelihood of confusion i'm happy to take questions but to answer the question since mr harrigan weren't raised it waver we specifically pled from the beginning described in its registration and that to the extent he ever used it in commerce you no longer does so he's a bandit so having pled abandonment and lack of use in commerce that necessarily invokes the inquiry of whether he's made a lawful bona fide use the ordinary course of trade language that captures whether the uses ins of what's expected in the industry and abandonment is a statutory grounds for cancellation of a federal registration and abandonment can be proven by note two to preserve a federal registration you have to make on five use in commerce in the ordinary course of trade rather than just trying to preserve the mark if you don't do that you abandon the market your registration is cancelled you have to continue you have to make use and continue put the burden on mr perry in connection with the i don't think it's entirely clear what actually happened was we came forward and made our prima facia showing that there had been no sales in commerce there had been no use and so the burden of production ended shift to mr perry to come forward with evidence to show that and the animal should not be inferred from the circumstances  his receipts we said here are your sales receipts there's nothing here to show these sales are made to anybody outside of louisiana and you're not on store shelves and he only made you know six bottles a year the burden did shift to him to come forward with mis and it would be admissible at trial to survive summary judgment and a trial mr perry would not be allowed to get up on the stand and say i happen to know that these people from other places it have to come forward with some foundation with some evidence to show readies people are from to identify who they are unsure of whether the trademark abandonment means that there has not been used only five use in commerce in the ordinary course of trade it has to meet the use has to meet the statutory definition of use in fifteen u s c lot of twenty seven i think that if it doesn't their st sale after you know being in the streets and knocking on doors and trying to promote selling not if abacus is only trying to sell it in as i would say it's not bona fide because it's not what a true small business owner trying to build a brand would  labels have never met federal employment partners so he was selling matchup in commerce he was breaking federal law and that unlawful use does not support a registration if he wasn't selling it in commerce which is what the record shows and he wasn't making bona fide into a bona fide use in commerce and that includes meaningful advertising you know real effort to try to promote his brand so if i were the trier of fact i find that quite convincing candidly but it is not a fact issue or that we are t a fact issue or is not a legal issue that we can do as a public or well it's a fact issue but when no reasonable jury could find to the contrary summary judgment is appropriate on questions of abandonment as with anything else and that's what the district court found here  there's no evidence of fide intent to use and there's no evidence of lawful use and there's no evidence of use in commerce this court has upheld summary judgment on in trademark cases on fact intensive questions like secondary meaning and likelihood of confusion and abandonment it's a question of whether reasonable jury could find to the contrary and this is just  s so without your honors i get i would suggest the district court properly found abandonment the plaintiff had made no lawful use of the match up mark in commerce and so his registration was properly cancelled with his registration having  cancel he has no claims for infringement and even if he did the district or properly found that no reasonable well jury could find that consumers would likely to be confused as to the source affiliation of sponsorship of either party's products even assuming any consumers knew sales bona fide in the ordinary course of trade or were they merely to reserve a name and or now what does that mean what that means and there's numerous cases on this issue the best case that i would point to on this is the s c johnson case was not happy with only nine dollars a profit was actively trying to do more than nine dollars ok on this issue i would say that first of all selling in his own hotel i don't see how that's any different from any a small business selling in it's own store it's the same thing this is it's a location he owned and he was selling his products out of this location to consumers and you know he was working on expanding his business as i mentioned he made transfers to  before yes and you know i guess i would also like to refer to this court to christ case out of the federal circuit which flatly rejected the new sales quota standard that was a real business my concern is it seems to me based on the record i may be wrong your lie with perfectly happy doing nine dollars because all this was was to preserve the more and hope that a company like heinz  guests now i understand that kraft times does not believe he had enough sales they ridiculed the amount of sales that he had he was trying your honor he was trying he was you know he was running multiple businesses he was trying to get this business moving it was trying to get it in store shelves or trying to get it in the orlando area he was doing what he could granted he does not have the resources of crack times that doesn't mean he's not entitled to trademark protection wh to thirty seven c of our suit points sixty nine where it says that the trademark office when examining a trademark who may make appropriate inquiry as to compliance with such an act for the sole purpose of determining the l of commerce reciting the application what does that mean it's referring to controlled substances can i get a trademark on marijuana can i get a trademark on drunk paranoid it even says that in the act i refer t to to comply with this is a twenty five dollars fine and only be assessed after he's put on notice he didn't receive any noticed and he's already fixed some minor label mistake if this were the case trade restaurants could lose their trademark rights for any