Okay, Mr. Ellison, we'll hear from you. Refreshing pins, all quick state company. Miss Ellison, I'm sorry. May I please the court? I'm Tracy Ellison and along with mine, partner Kelly Keller, we represent Pinzal Quaker State in this trademark infringement matter. We are asking the court to reverse the lower court's finding of acquiescence and its injunction to the extent that the injunction allows a continued use of the trademark and trade dress. I'll address three of the grounds for that request today or intends to. One basic question. One of the elements is prejudice. And that's where the, maybe the weakest point of the case for the defendant is failure to show prejudice in the doctrine of acquiescence. And the prejudice that there's show in is that religion is the restoration costs for the filenensation and operation there that is just plasted with Pinzal everywhere. And they've got to take all of that down. And Pinzal could come in and give them $40,000 or take it down themselves and eliminate the prejudice. Any possible, why don't you do that? In this case it'll be old. You'd win. Your honor, the court certainly, I believe, that certainly would have been within the court's discretion to order. That is not what the court ordered, however. It's in with the court didn't order you not to do it. You could surely have done that. And the case would be old
. I just wondered why you didn't do it. $40,000, that's, you charged some more than that for litigating this case this fall. That's correct, Your Honor. I would agree with that. There's, the answer to that, unfortunately there's no evidence in the record of it. However, it was really not within Pinzal's purview to be able to go on to the private property and simply remove the trade dress. I believe had that bit of opportunity they would have done so. Because I mean, own record. I mean, it is like $40,000 is basically the cost, I think, that you offered them at one time to put up the signs. If they would put them up, you'd pay them $40,000. And you could just send them a check. $40,000, not take it down. Right in. That's correct. And Your Honor, I believe my client would have been more than happy for that to have occurred. They simply were never given the authorization to do so. Okay. But specifically to the courts point, the epilease weakest point I agree is the element of reliance and what is required for reliance in acquiescence is, I guess most instructively looking at the Cone and Case and the Abraham case. And in the Cone and Case, the jury instruction that was tacitly approved by this court specifically said that in order to establish the element of reliance in acquiescence, for which it is an affirmative defense, by the way, and the defendants do carry the burden of proof
. But the defendant must prove that it has built up a business around reliance on use of the trademark and trade dress. I don't think he's in doubt about that in the briefs that I've read that they did do that. I mean, you had a pencil decorated that place like, you know, it was a circus. I mean, what pencil everywhere? You know, but in the case law, when you look at what is the reliance, what is the business investment, it's not just building up the case around it, but in Abraham, the court also said the jury instruction was that the unlicensed user is undeadly prejudiced, when in reliance it makes major business investments or expansions upon use of the trademark. And therefore, to determine if a user is undeadly prejudiced, you must consider what business investments and expansions, the user of the trademarks made. And in this case, there is no evidence that the apolese made any business investment or built a business around the trademark. Pitstop USA was in the business of oil change and automotive inspection since 1992. They didn't build the business and reliance on the trademark and trade dress that was put in place in 2006. The business had long been standing. They didn't expand at the business in any way. There's no evidence that they made any investment. They didn't open more shops. They didn't expand their shop. They didn't expand their offerings. I mean, that's basically your argument on the PO is that the era of the fatal era, the district court, was it found prejudice, which is a necessary element to establish the defense of doctrine of acquiescence. That is one of the grounds. That seems to me the strongest argument you've got. Tell me what you think is equally strong. Equally strong
. And one further point on that, it is not only a no evidence point, but it is also a point of a misapplication of law to the evidence because when you look at the findings of the court, the lower court, there are no findings of business investment or business expansion. That's the other way. I should say in other words, state and prejudice. All you're doing is saying that the district court aired in a finding prejudice based on the expensive removal of the pencil decorations. Correct your honor. The only point I'm making is a no evidence is reviewable of findings of facts reviewable based on a no evidence standard application of law to the facts with the conclusions of law are freely reviewable by the court. That was my only point. The other element of the assurance, affirmative defense of assurance is, affirmative defense of acquiescence is assurance. Like reliance, there is no evidence that there was an assurance by pinzoil that the appellees could continue utilizing the trademark and trade dress even if they sold counterfeit products and even if they utilized the trade dress to mislead consumers. Both of those activities were found to have occurred in this case. That's expanding the assurance element of the doctrine beyond what I would think of what they would need to show. Could pinzoil have kept its mark and then allowed people to sell other products under its label? There were not. Under that mark, there were not. If I understand the court's question, yes, the appellees could continue selling other oil products even if they use pinzoil trademark and trade dress. However, they didn't sell any pinzoil product at all and they got pinzoil everywhere. So I'm driving there to get my whole change. I think I'm getting pinzoil and they don't even sell pinzoil. There's nothing to problem with that. There would be a problem with that
. That would probably be infringement because it would be misleading the public what the source of product is. Yes, so my question. It would protect their mark. I would think the duty to please your mark. You can't let somebody else use it and mark it to other product. You cannot allow someone to agree. You cannot allow someone to use it and knowingly allow them to use it, knowing that they're not selling any of your product. That was not the case in this case, your honor. In this case, pinzoil submitted a contract to the appellees expecting it to be returned. But the injection that you appeal and says that the injection requires them to stop immediately unless pitstop continues to promote and feature pinzoil products, which they were doing, does not advertise or promote other major oil brand, which they were not doing, and purchases the product directly from pinzoils authorized the distributor. So they want selling or advertising, that they were selling any other oil of the pinzoil, were they? Your honor, while that part of the injection addresses perhaps confusion regarding source of product, it does not address the confusion that still exists in the infringement that is ongoing regarding confusion, regarding sponsorship and affiliation. There is no sponsorship of a affiliation between pinzoil and pitstop USA at this point. That is clear. There is no question of that. And again, instructive in Abraham. What I'm going to do is really a friendly line of questions. It's not clear to me how a court can order a company to continue to let somebody use their mark and selling competitive products, for example, because they relied upon that use of that in the past. I mean, that just doesn't make sense. But that didn't happen here
. No, the detriment that you, what is the detriment that you found here, that they were allotted upon what? If I'm following your question, if I may address it in this regard, with regard to the injunction itself, and allowing someone to continue using the marks, the reason that is error is because in order, even if acquiescence were found, the court laws clear and stated very well in Abraham, that in a very instructive in Abraham, is that where infringement has been found? And of course, remember, it's an infringing use that's ongoing. There's a confusion that's going to be ongoing. You can only allow continued use in extreme situations. And those are situations where significant business investment would be lost if continuing use of the trademark and trade dress were allowed. In Abraham, even where they had invested millions of dollars in the business, rebuilt their business three times in reliance on utilizing the trademark protected Greek symbols and letters and symbols, the court disallowed future use. Even in that case, it wasn't enough to allow future use of an future infringing use. In our case, there was, again, no evidence of any business investment that would be lost to pitstop if they were not allowed to continue using the trademark and trade dress. There was not even any evidence of any, not just business investment loss, business loss itself. In fact, the evidence associated that with that was a statement by Mr. Miller from a question from the court. Was there any difference between your business before and after the re-imaging? Mr. Miller's response was no. There is no evidence. We still, is, is, is, I understand your argument, it all comes back to the fact that the district court aired and found in any prejudice as a result of the reliance upon the earlier representations that had been made. That is correct, Your Honor. And that argument continues because the prejudice that's required is got to be sharp in demanding for the reason that you, the people are continuing to use your mark. That is correct. And there's really two components of it. At the level of the affirmative defense of acquiescence, the reliance component, there has to be evidence of business investment and business development around
. At the point, even if that is established, then at the point that might, in ordinarily would excuse damages in order to prevent injunction issuing, however, there has to be an additional prejudice and additional showing of loss of the business investment if it were not allowed to continue. That did not occur in this case. And the court's only finding in that regard again, I'll go back to the court, did not actually even enter a finding of either level of prejudice, either for the defense of acquiescence or the failure to enjoy future use. The court didn't find any, any, any, any finding of that prejudice instead. At one point it said it would be burdensome to remove. At another point it said they allowed their trade dress to be removed. Neither of those are findings of fact sufficient to support a finding of acquiescence or sufficient to allow infringing use to continue. And so we asked that they be reversed, both of those findings be reversed, both for a no evidence point and a misapplication of law to the facts. One question here, this is an injunction and it is based on supposed on equity and it, and the district court has a lot of discretion as long as it operates within the law to fashion and injunction. So I mean, how do you say the district court abused its discretion here other than to say that it misapprehended the requirement of prejudice in applying the doctrine of acquiescence. I mean, you clearly, the basis of the ruling is that you acquiesced in all of this and you acquiesced in the continued use of these trade marks. But did the district court abuse its discretion and if it had found some sort of prejudice other than the mere removal of the signage? It did abuse its discretion, Your Honor, and I could explain it best in the phrases that you use. They have discretion, the lower court has discretion to operate within the bounds of the law. That requires finding, having evidence of the elements of the affirmative defense and applying the law relating to acquiescence to their findings of fact. The lower court does not have, where there is no evidence of the elements of an affirmative defense. And when the findings themselves do not support a conclusion that an affirmative defense has been found, that is an abuse of discretion because the court did act beyond the bounds of the law. Okay, well, thank you very much. And now we will hear from Mr. Boyd representing Mill or Company
. Mr. Arme, please the court. What we have here, and it's probably not very well stated in Appleese brief, we actually have three parts of the court's order. We have an absolute full injunction as to any unfettered use by Pitstop, use of the trademark without any limitation. Then we have a denial of the injunction for limited future use by Pitstop, which is essentially conditioned. If Pitstop complies with these conditions in the future, then the injunction is denied. And that's the acquiescence component. And then finally, when we get to a delusion, they couple both of those with a limited injunction to avoid the delusion. So we actually have three component parts here. And the acquiescence is the one that somewhat, our issue here is the reliance issue. But when you look at the Conan case, Conan says straight out. It says you either have reliance or you have substantial prejudice. Either or both of those meet the test for acquiescence. In this particular instance, there's really no question, and I don't think there's any dispute, that Pinzolo Newful and Well of Pitstop's use of the mark. Pinzolo in the words of the trial court proposed it, they planned it, they funded it, and they performed it. They put their workers out there and made it happen. So I don't think that's a dispute. The court, in its opinion, says the act of doing that, of doing just that, is what the implicit and explicit assurances are. You bet you can use it
. We're going to put it on your station and allow you to do that. That's the implicit assurances, and it's the explicit insurance as well. Obviously, they're not saying we're putting this up that you can't use it. And the trial court was very, very specific on that. It's the logical flow, but they did it, they found it with a condition in that condition. Then mega finding that the defendant for prejudice because of the reliance on Pinzolo's assurances. I am sorry, Your Honor. I said the district court did not make a finding that the defendants were prejudiced because of the reliance on Pinzolo's assurances. That's correct, Your Honor. They simply made the district court made the statement, pitstop relied upon those insurances when they permitted the removal of their own trade dress. That was what the court held. And when you look at the Konehane case, which is the leading circuit case on the acquiescence issue, it specifically states that third prong requires either reliance or substantial prejudice. No, no, no. That's where I would read the doctrine of the doctrine of insurance. What is it? In a way, the doctrine relies reliance. You have to show that you did rely on the representations they made. The second is that the assurance was made. The doctrine of insurance was made. The reliance was made on the assurance and the reliance was to the prejudice off the defendant
. I think that we're actually all saying the same thing here. But, you know, from my point of view, what you've got to show is whether the replacement calls or replacement of the signage, or the consulate satisfied the requirement of prejudice under the doctrine of acquiescence. Your Honor, I think that the way we're looking at prejudice and the way the trial court looked at prejudice is looking back at the time the assurances were made, not at some subsequent point. And so the cost of removing- I think you just tell me what your authority for that, the district court, if that is the case, how the district court was following the law and making that assumption. Well, I believe in the district court actually recites it in its opinion, it's straight out of Conean. It says, whether phrased as reliance or prejudice, the effect is the same. There was substantial economic investments made in Conean. Economic investments, I thought. There was some, but I think that's merely evidence of the substantial prejudice. I don't think it is a requirement, it's not required in Conean. But you don't have to make any economic investment at all in your area. I don't think that there- I think in order to have substantial prejudice, that a defendant actually has to do something and otherwise would have not done absent the plaintiff's conduct. That's a lovely- And that could be substantial investment. In this case, what it was, it was the loss of the complete identity of the prior business. To the extent that there was investment in that- But that whole thing is that they didn't lose any money by surrendering themselves to Pinsor. No, but your honor would occur- If they didn't lose any money, there's no prejudice. They made money by surrendering themselves to Pinsor. They lost their identity, your honor, as it's- Well, since it's not- Did it cost them anything? No, they made money by losing their identity. There's no prejudice, that's the only thing
. And it sounds pretty good to me. Well- Let sure what a dirty you would lose and the more workplace if they sell making the money they were making before. Right, right. It's not a welcome prejudice. I guess at this point if you have a McDonald's that's been long time established and it turns into a jack in the box, there's no change in the entity. Because there's no change in the revenue. But it's obviously still something different. In this picture- Me, but changing identity is simply the loss of the mark. And I don't know what- Well, to the whole license, is there perpetual? Well, to the extent that pitstop had an identity and it ended up itself at some market lost its market gain, the Pinsor will mark. And if it were to be deprived of the Pinsor, a little more, then it would have to go back to its mark. And the court was pretty clear that while- You had an opportunity to show that kind of prejudice and you didn't show it. Well, I believe we did. You're on our in terms of the- No, you showed no economic losses. I understand it. Now, if you did, you can tell me about it. You're on our, we didn't quantify it in dollars and cents. Instead, what was done was through the testimony. It was demonstrated that the difficulty of removing that truck to us. And I'm asking you to cite me one case, because they say there's none, that holds that prejudice can be satisfied by the cost of removing the signs, as opposed to the loss of an investment- Business investment. I'll be honest with you, I'm unaware of the- The fact that- In fact, you can't cite a case to that effect that the cost of restoring the places prejudice, then the district who did it? Well, but your honor, in co-nans, we don't have a substantial investment question either. We don't have dollars and cents quantified in co-nans. I think they did. I think in co-nans, they had the whole rest of the individual had put all of his money into this one restaurant. So he had a huge investment under the mark of co-nans or whatever the mark was. And then co-nans came and had his picture taken with these people. And it was saying you're doing a great job here, and then that was the basis for the- For the defense of the doctrine of- Perhaps what I read into co-nans was not the dollars invested, but the fact that they ran co-nans for eight years, just like pitstop ran for its number of years, building up a good will under that mark. Based on the assurances in reliance. So I thought the evidence showed that the Penzole's concern was that this place pitstop with Brandon, pitsole, that Penzole all of the images went with that. And if I wanted to get my trucks all changed, I wouldn't necessarily get Penzole. They would substitute cheap stuff in there. So this is a reliance upon the selling product under the image of Penzole, and it's not Penzole. And then they'd come back and Penzole said, you can't do that. And I relied on my detriment. My identity has been lost. That's extraordinary. You're using their all, if by their allegations. You're using their images to self-cheap or all, making more money. The trial court specifically found in its findings the fact that pitstop actually made me more profit off of the Penzole
. I'll be honest with you, I'm unaware of the- The fact that- In fact, you can't cite a case to that effect that the cost of restoring the places prejudice, then the district who did it? Well, but your honor, in co-nans, we don't have a substantial investment question either. We don't have dollars and cents quantified in co-nans. I think they did. I think in co-nans, they had the whole rest of the individual had put all of his money into this one restaurant. So he had a huge investment under the mark of co-nans or whatever the mark was. And then co-nans came and had his picture taken with these people. And it was saying you're doing a great job here, and then that was the basis for the- For the defense of the doctrine of- Perhaps what I read into co-nans was not the dollars invested, but the fact that they ran co-nans for eight years, just like pitstop ran for its number of years, building up a good will under that mark. Based on the assurances in reliance. So I thought the evidence showed that the Penzole's concern was that this place pitstop with Brandon, pitsole, that Penzole all of the images went with that. And if I wanted to get my trucks all changed, I wouldn't necessarily get Penzole. They would substitute cheap stuff in there. So this is a reliance upon the selling product under the image of Penzole, and it's not Penzole. And then they'd come back and Penzole said, you can't do that. And I relied on my detriment. My identity has been lost. That's extraordinary. You're using their all, if by their allegations. You're using their images to self-cheap or all, making more money. The trial court specifically found in its findings the fact that pitstop actually made me more profit off of the Penzole. But more importantly, that Penzole was constantly being upsold and featured by pitstop. They all for pitstop offered a generic alternative for those who did not want. I'm just picking up, and maybe have the facts all wrong. I've read that, the record I'd careful with for sure. But as I read the papers here, the thing that precipitated this dispute was that your client was not overselling Penzole's product, or pitstop was purchasing from who they thought was an authorized Penzole distributor. There was an anonymous complaint apparently made to Penzole. If that point Penzole noticed and saying, we don't think you're selling Penzole product, the minute they found out about that complaint, they pulled every bit out of the shop, they took the barrels and said Penzole was segregating. What were they putting out of the shop when they complained? Oil that they had purchased in Penzole barrels from Latch Oil Company in East Texas. What I'm saying about you, what you're telling me is that they were doing exactly that. They were selling, why would you pull out this other oil? Sully based on the allegation they did not want to be in a situation where the product wasn't as it was stated. They had no reason to believe that it wasn't Penzole other than Penzole's own allegation that there were insufficient chemical tracers. Pitstop has no way of physically testing the oil. I just didn't follow what you just said. I thought you said on a complaint of Penzole, some non-immolts, whatever, and Penzole brought it to their attention, then they pulled out all, drums of all. I don't think you were telling me that they were putting out Penzole. They were doing exactly what the anonymous tip said they were doing. Your Honor, they were pulling out oil that they had purchased from Latch in Penzole packaging that had been represented to them as Penzole by Latch. You're telling me that all that you were throwing out had Penzole's label stamped on it. Yes, Your Honor
. But more importantly, that Penzole was constantly being upsold and featured by pitstop. They all for pitstop offered a generic alternative for those who did not want. I'm just picking up, and maybe have the facts all wrong. I've read that, the record I'd careful with for sure. But as I read the papers here, the thing that precipitated this dispute was that your client was not overselling Penzole's product, or pitstop was purchasing from who they thought was an authorized Penzole distributor. There was an anonymous complaint apparently made to Penzole. If that point Penzole noticed and saying, we don't think you're selling Penzole product, the minute they found out about that complaint, they pulled every bit out of the shop, they took the barrels and said Penzole was segregating. What were they putting out of the shop when they complained? Oil that they had purchased in Penzole barrels from Latch Oil Company in East Texas. What I'm saying about you, what you're telling me is that they were doing exactly that. They were selling, why would you pull out this other oil? Sully based on the allegation they did not want to be in a situation where the product wasn't as it was stated. They had no reason to believe that it wasn't Penzole other than Penzole's own allegation that there were insufficient chemical tracers. Pitstop has no way of physically testing the oil. I just didn't follow what you just said. I thought you said on a complaint of Penzole, some non-immolts, whatever, and Penzole brought it to their attention, then they pulled out all, drums of all. I don't think you were telling me that they were putting out Penzole. They were doing exactly what the anonymous tip said they were doing. Your Honor, they were pulling out oil that they had purchased from Latch in Penzole packaging that had been represented to them as Penzole by Latch. You're telling me that all that you were throwing out had Penzole's label stamped on it. Yes, Your Honor. But it wasn't Penzole alone. According to Penzole, it was not Penzole oil. The problem is that there's no way for someone like Pitstop to test the tracers because they won't provide the data. Not only that, there are other lab facilities. But the mere allegation was enough to say, let's pull it out of the tank, let's keep the barrels that are marked Penzole that we acquired from Latch and put them over to the side. And it was found out through this lawsuit and immediately a third party complaint was filed against Latch for selling counterfeit oil and selling it to Pitstop as Penzole in Penzole barrels. Can you sum up what your position is? One, two, three, four. Another, two, three, four. Should we have found the district court? The re-imaging was complete. It was substantial. As Judge Hitter said, it was all over the place. And as a consequence, Pitstop, which had a red, white, and blue identity that had been in business for many, many years, ceased to exist and became Penzole's stationary billboard on a major thoroughfare. And they went from being it. Obviously the penit retailer to a Penzole facility. They could have simply gone in. Pitstop could have gone in and repainted their building and put on their awnings and maintained their own color. But that's not, you're not making any points right there. It's what you've done. Reduce this thing to its essence, to your position, to its essence
. But it wasn't Penzole alone. According to Penzole, it was not Penzole oil. The problem is that there's no way for someone like Pitstop to test the tracers because they won't provide the data. Not only that, there are other lab facilities. But the mere allegation was enough to say, let's pull it out of the tank, let's keep the barrels that are marked Penzole that we acquired from Latch and put them over to the side. And it was found out through this lawsuit and immediately a third party complaint was filed against Latch for selling counterfeit oil and selling it to Pitstop as Penzole in Penzole barrels. Can you sum up what your position is? One, two, three, four. Another, two, three, four. Should we have found the district court? The re-imaging was complete. It was substantial. As Judge Hitter said, it was all over the place. And as a consequence, Pitstop, which had a red, white, and blue identity that had been in business for many, many years, ceased to exist and became Penzole's stationary billboard on a major thoroughfare. And they went from being it. Obviously the penit retailer to a Penzole facility. They could have simply gone in. Pitstop could have gone in and repainted their building and put on their awnings and maintained their own color. But that's not, you're not making any points right there. It's what you've done. Reduce this thing to its essence, to your position, to its essence. Why is the district court correct? As I understand it, the district court, the basic reason they are arguing that the district court is incorrect is that you made no investment, that there was no prejudice that resulted from their acquiescence to use their product and their signs. Now, why is that wrong? That is wrong, Your Honor, because there is nevertheless a prejudice as a loss of the Pitstop identity, which the district court took into account and that there is not necessarily a requirement that that be quantified. If it could be quantified in dollars and so. Okay, that's your argument. That's it. You've laid it out there. What about the Penzole Quaker, Tony argued that acquiescence would be a defense to damages for infringement. Past aims, but it does not allow the court to have the discretion to order in perpetuity that Pitstop can use Penzole's trademarks under certain conditions. What's your response to that? That's not what the district court actually did. What the district court did is it fashioned an equitable result. And it said, you were provided assurances that you could use this if you meet these various conditions, namely you buy from an authorized distributor, you eat your Penzole products and you do not carry another major brand. And provided they did that, then they're entitled to use the Penzole Quaker, which Penzole put all over their building. And they further ordered, that it is the court further ordered, that you could not continue to use the Penzole signage once this signage wore out. You could not replace it with new signage. So you could not, as soon as they got rid of this signage, you could no longer use that trademark. That's what they said. That's correct, Runner. I think it actually implies something even further than that. It said to me, the judge Hitter's order says, and not only that, you can't go out and build another Pitstop and put Penzole signage
. Why is the district court correct? As I understand it, the district court, the basic reason they are arguing that the district court is incorrect is that you made no investment, that there was no prejudice that resulted from their acquiescence to use their product and their signs. Now, why is that wrong? That is wrong, Your Honor, because there is nevertheless a prejudice as a loss of the Pitstop identity, which the district court took into account and that there is not necessarily a requirement that that be quantified. If it could be quantified in dollars and so. Okay, that's your argument. That's it. You've laid it out there. What about the Penzole Quaker, Tony argued that acquiescence would be a defense to damages for infringement. Past aims, but it does not allow the court to have the discretion to order in perpetuity that Pitstop can use Penzole's trademarks under certain conditions. What's your response to that? That's not what the district court actually did. What the district court did is it fashioned an equitable result. And it said, you were provided assurances that you could use this if you meet these various conditions, namely you buy from an authorized distributor, you eat your Penzole products and you do not carry another major brand. And provided they did that, then they're entitled to use the Penzole Quaker, which Penzole put all over their building. And they further ordered, that it is the court further ordered, that you could not continue to use the Penzole signage once this signage wore out. You could not replace it with new signage. So you could not, as soon as they got rid of this signage, you could no longer use that trademark. That's what they said. That's correct, Runner. I think it actually implies something even further than that. It said to me, the judge Hitter's order says, and not only that, you can't go out and build another Pitstop and put Penzole signage. You're enjoined and restrained from future erection of any exterior signage. I thought the evidence was these signs last 25 years. I thought the evidence from your witness was that he expected the sign to last 25 years. I want to say between 10 to 25 year order depending on the material. Your witness said he expected these Penzole signs, the new ones to last 25 years. That's correct, Runner. Penzole, I guess the record put up all their signage, somebody wants to sell their product and they put all that signage up. It's good for at least 25 years because to take it otherwise we destroy their identity. It's not a perpetual market just for the lifetime of the ordinary bird. That's correct. It's not a perpetual, it's for the life of the signage. If the signage lasts 25 years fine, if it lasts 10 years fine, they can't put new signage up. Nor can they erect any new building and use the same signage. But they're allowed to use the signage without any kind of contract for substantial period of time. They are allowed only if they feature Penzole. Right, under those conditions, but there doesn't have to be any, there's no contractual. No, there's no contract, and there was no contract in place when Penzole put it, put all the signage on the property. That contract had expired and Penzole was aware that it had expired. I've pretty not won the Dunedin Good, I know that's really
. You're enjoined and restrained from future erection of any exterior signage. I thought the evidence was these signs last 25 years. I thought the evidence from your witness was that he expected the sign to last 25 years. I want to say between 10 to 25 year order depending on the material. Your witness said he expected these Penzole signs, the new ones to last 25 years. That's correct, Runner. Penzole, I guess the record put up all their signage, somebody wants to sell their product and they put all that signage up. It's good for at least 25 years because to take it otherwise we destroy their identity. It's not a perpetual market just for the lifetime of the ordinary bird. That's correct. It's not a perpetual, it's for the life of the signage. If the signage lasts 25 years fine, if it lasts 10 years fine, they can't put new signage up. Nor can they erect any new building and use the same signage. But they're allowed to use the signage without any kind of contract for substantial period of time. They are allowed only if they feature Penzole. Right, under those conditions, but there doesn't have to be any, there's no contractual. No, there's no contract, and there was no contract in place when Penzole put it, put all the signage on the property. That contract had expired and Penzole was aware that it had expired. I've pretty not won the Dunedin Good, I know that's really. It's a funny thing about a forced situation. I guess one of the spouses may lose their identity, but I don't know that that means that you have to continue their relationship with 10-25 years. But it distracts me as an oddity of the way this has been applied as a trademark law in franchising what so be it. If I could address that, I think the entire point of the trademark is that there is intrinsic value in every trademark. Whether it be the pitstop trademark. Is there any sponsorship or affiliation going forward? I think that's a good word. By... To the extent that pitstop is only purchasing Penzole product from Penzole authorized dealers. But it's totally up to pitstop. It's its own whim. It's self-choice. Within the context of the injunction. And Penzole stop selling Penzole oil to pitstop tomorrow? That's an anti-trust question. I don't know the answer to. I would assume it's under contract law to assume gas. I don't know why they couldn't. Okay, Mr
. It's a funny thing about a forced situation. I guess one of the spouses may lose their identity, but I don't know that that means that you have to continue their relationship with 10-25 years. But it distracts me as an oddity of the way this has been applied as a trademark law in franchising what so be it. If I could address that, I think the entire point of the trademark is that there is intrinsic value in every trademark. Whether it be the pitstop trademark. Is there any sponsorship or affiliation going forward? I think that's a good word. By... To the extent that pitstop is only purchasing Penzole product from Penzole authorized dealers. But it's totally up to pitstop. It's its own whim. It's self-choice. Within the context of the injunction. And Penzole stop selling Penzole oil to pitstop tomorrow? That's an anti-trust question. I don't know the answer to. I would assume it's under contract law to assume gas. I don't know why they couldn't. Okay, Mr. Moore, thank you very much. And we will move to rebuttal now by Miss Ellison. Thank you. Two specific points in rebuttal. First, the evidence was that the oil product that was purchased by the investigator in 2010 was not Penzole product. The evidence also was an dispute. It was not that pitstop did buy from authorized dealer. The oil did come in pit...Penzole barrels. So pitstop did not know. There's no evidence that I saw that pitstop knew it was buying anything other than pitpins of oil oil. Latch was not an authorized distributor. The authorized distributor that pitstop should have been purchasing from and was purchasing some amounts from at that time was oil patch. Latch was not an authorized pencil. I assume that they weren't paying the same price for that oil that they were paying up Penzole for it. They wouldn't have been buying it either. One could survive in that area, Your Honor
. Moore, thank you very much. And we will move to rebuttal now by Miss Ellison. Thank you. Two specific points in rebuttal. First, the evidence was that the oil product that was purchased by the investigator in 2010 was not Penzole product. The evidence also was an dispute. It was not that pitstop did buy from authorized dealer. The oil did come in pit...Penzole barrels. So pitstop did not know. There's no evidence that I saw that pitstop knew it was buying anything other than pitpins of oil oil. Latch was not an authorized distributor. The authorized distributor that pitstop should have been purchasing from and was purchasing some amounts from at that time was oil patch. Latch was not an authorized pencil. I assume that they weren't paying the same price for that oil that they were paying up Penzole for it. They wouldn't have been buying it either. One could survive in that area, Your Honor. And we would just make the point whether it was intentional or inadvertent through lack of quality control. It doesn't change the fact that a counterfeit product was sold to the public. That's undisputed. The other point in rebuttal is the evidence does not support and ordered the lower court find that pitstop completely lost its identity. Pitstop began as an oil change and automotive inspection business in 1992. It continued doing business as pitstop USA. In the re-imaging it is still prominently displayed. Pitstop USA is still prominently displayed on the facade of the building. The invoices at pitstop, this is all in the record. The invoices at the location prominently displayed pitstop USA. They even have t-shirts made that have the emblem pitstop USA. They continue today to do business as pitstop USA. They did not lose their identity. The court didn't find that they lost their identity. Even if it had, it still doesn't rise to a business investment or development of a business around dependence and reliance on use of the trademark as is required. This court has pointed out in Conean and Abraham. In Conean, they built four additional restaurants in reliance on utilization of the name Conean's Pizza. Four additional businesses that is developing business around the belief and assurance it could call their businesses Conean's Pizza. That is the kind of business investment that has to be shown by the appellees to establish the element of acquiescence
. And we would just make the point whether it was intentional or inadvertent through lack of quality control. It doesn't change the fact that a counterfeit product was sold to the public. That's undisputed. The other point in rebuttal is the evidence does not support and ordered the lower court find that pitstop completely lost its identity. Pitstop began as an oil change and automotive inspection business in 1992. It continued doing business as pitstop USA. In the re-imaging it is still prominently displayed. Pitstop USA is still prominently displayed on the facade of the building. The invoices at pitstop, this is all in the record. The invoices at the location prominently displayed pitstop USA. They even have t-shirts made that have the emblem pitstop USA. They continue today to do business as pitstop USA. They did not lose their identity. The court didn't find that they lost their identity. Even if it had, it still doesn't rise to a business investment or development of a business around dependence and reliance on use of the trademark as is required. This court has pointed out in Conean and Abraham. In Conean, they built four additional restaurants in reliance on utilization of the name Conean's Pizza. Four additional businesses that is developing business around the belief and assurance it could call their businesses Conean's Pizza. That is the kind of business investment that has to be shown by the appellees to establish the element of acquiescence. In Abraham, the element, and although that was a latches case, let me be clear, the court said the inquiry regarding reliance is the same or similar. In that case, Abraham spent millions of dollars rebuilding its business three times in reliance on utilizing the trademark symbols. Interestingly, in that case, the trademark protection for those symbols came after Mr. Abraham had begun his use and had utilized them for years. Finally, owners, I would just reiterate our request that this court reverse the lower courts finding of acquiescence. First, because there is no evidence of the elements of assurance or reliance necessary for a finding of acquiescence. Secondly, the actual findings of the court in those areas are insufficient to support a conclusion that acquiescence was established. Finally, you want to survey cake and junction is what you say. You are, we'd like to be either vacate the injunction or remain the injunction with instruction that an injunction prohibiting all future use issue immediately because there is no evidence of loss of future business at all. If they are not allowed to continue utilizing the trademark and trade dress again in an infringing matter, there is no sponsorship or affiliation between these parties at this time. Thank you, owners.
Okay, Mr. Ellison, we'll hear from you. Refreshing pins, all quick state company. Miss Ellison, I'm sorry. May I please the court? I'm Tracy Ellison and along with mine, partner Kelly Keller, we represent Pinzal Quaker State in this trademark infringement matter. We are asking the court to reverse the lower court's finding of acquiescence and its injunction to the extent that the injunction allows a continued use of the trademark and trade dress. I'll address three of the grounds for that request today or intends to. One basic question. One of the elements is prejudice. And that's where the, maybe the weakest point of the case for the defendant is failure to show prejudice in the doctrine of acquiescence. And the prejudice that there's show in is that religion is the restoration costs for the filenensation and operation there that is just plasted with Pinzal everywhere. And they've got to take all of that down. And Pinzal could come in and give them $40,000 or take it down themselves and eliminate the prejudice. Any possible, why don't you do that? In this case it'll be old. You'd win. Your honor, the court certainly, I believe, that certainly would have been within the court's discretion to order. That is not what the court ordered, however. It's in with the court didn't order you not to do it. You could surely have done that. And the case would be old. I just wondered why you didn't do it. $40,000, that's, you charged some more than that for litigating this case this fall. That's correct, Your Honor. I would agree with that. There's, the answer to that, unfortunately there's no evidence in the record of it. However, it was really not within Pinzal's purview to be able to go on to the private property and simply remove the trade dress. I believe had that bit of opportunity they would have done so. Because I mean, own record. I mean, it is like $40,000 is basically the cost, I think, that you offered them at one time to put up the signs. If they would put them up, you'd pay them $40,000. And you could just send them a check. $40,000, not take it down. Right in. That's correct. And Your Honor, I believe my client would have been more than happy for that to have occurred. They simply were never given the authorization to do so. Okay. But specifically to the courts point, the epilease weakest point I agree is the element of reliance and what is required for reliance in acquiescence is, I guess most instructively looking at the Cone and Case and the Abraham case. And in the Cone and Case, the jury instruction that was tacitly approved by this court specifically said that in order to establish the element of reliance in acquiescence, for which it is an affirmative defense, by the way, and the defendants do carry the burden of proof. But the defendant must prove that it has built up a business around reliance on use of the trademark and trade dress. I don't think he's in doubt about that in the briefs that I've read that they did do that. I mean, you had a pencil decorated that place like, you know, it was a circus. I mean, what pencil everywhere? You know, but in the case law, when you look at what is the reliance, what is the business investment, it's not just building up the case around it, but in Abraham, the court also said the jury instruction was that the unlicensed user is undeadly prejudiced, when in reliance it makes major business investments or expansions upon use of the trademark. And therefore, to determine if a user is undeadly prejudiced, you must consider what business investments and expansions, the user of the trademarks made. And in this case, there is no evidence that the apolese made any business investment or built a business around the trademark. Pitstop USA was in the business of oil change and automotive inspection since 1992. They didn't build the business and reliance on the trademark and trade dress that was put in place in 2006. The business had long been standing. They didn't expand at the business in any way. There's no evidence that they made any investment. They didn't open more shops. They didn't expand their shop. They didn't expand their offerings. I mean, that's basically your argument on the PO is that the era of the fatal era, the district court, was it found prejudice, which is a necessary element to establish the defense of doctrine of acquiescence. That is one of the grounds. That seems to me the strongest argument you've got. Tell me what you think is equally strong. Equally strong. And one further point on that, it is not only a no evidence point, but it is also a point of a misapplication of law to the evidence because when you look at the findings of the court, the lower court, there are no findings of business investment or business expansion. That's the other way. I should say in other words, state and prejudice. All you're doing is saying that the district court aired in a finding prejudice based on the expensive removal of the pencil decorations. Correct your honor. The only point I'm making is a no evidence is reviewable of findings of facts reviewable based on a no evidence standard application of law to the facts with the conclusions of law are freely reviewable by the court. That was my only point. The other element of the assurance, affirmative defense of assurance is, affirmative defense of acquiescence is assurance. Like reliance, there is no evidence that there was an assurance by pinzoil that the appellees could continue utilizing the trademark and trade dress even if they sold counterfeit products and even if they utilized the trade dress to mislead consumers. Both of those activities were found to have occurred in this case. That's expanding the assurance element of the doctrine beyond what I would think of what they would need to show. Could pinzoil have kept its mark and then allowed people to sell other products under its label? There were not. Under that mark, there were not. If I understand the court's question, yes, the appellees could continue selling other oil products even if they use pinzoil trademark and trade dress. However, they didn't sell any pinzoil product at all and they got pinzoil everywhere. So I'm driving there to get my whole change. I think I'm getting pinzoil and they don't even sell pinzoil. There's nothing to problem with that. There would be a problem with that. That would probably be infringement because it would be misleading the public what the source of product is. Yes, so my question. It would protect their mark. I would think the duty to please your mark. You can't let somebody else use it and mark it to other product. You cannot allow someone to agree. You cannot allow someone to use it and knowingly allow them to use it, knowing that they're not selling any of your product. That was not the case in this case, your honor. In this case, pinzoil submitted a contract to the appellees expecting it to be returned. But the injection that you appeal and says that the injection requires them to stop immediately unless pitstop continues to promote and feature pinzoil products, which they were doing, does not advertise or promote other major oil brand, which they were not doing, and purchases the product directly from pinzoils authorized the distributor. So they want selling or advertising, that they were selling any other oil of the pinzoil, were they? Your honor, while that part of the injection addresses perhaps confusion regarding source of product, it does not address the confusion that still exists in the infringement that is ongoing regarding confusion, regarding sponsorship and affiliation. There is no sponsorship of a affiliation between pinzoil and pitstop USA at this point. That is clear. There is no question of that. And again, instructive in Abraham. What I'm going to do is really a friendly line of questions. It's not clear to me how a court can order a company to continue to let somebody use their mark and selling competitive products, for example, because they relied upon that use of that in the past. I mean, that just doesn't make sense. But that didn't happen here. No, the detriment that you, what is the detriment that you found here, that they were allotted upon what? If I'm following your question, if I may address it in this regard, with regard to the injunction itself, and allowing someone to continue using the marks, the reason that is error is because in order, even if acquiescence were found, the court laws clear and stated very well in Abraham, that in a very instructive in Abraham, is that where infringement has been found? And of course, remember, it's an infringing use that's ongoing. There's a confusion that's going to be ongoing. You can only allow continued use in extreme situations. And those are situations where significant business investment would be lost if continuing use of the trademark and trade dress were allowed. In Abraham, even where they had invested millions of dollars in the business, rebuilt their business three times in reliance on utilizing the trademark protected Greek symbols and letters and symbols, the court disallowed future use. Even in that case, it wasn't enough to allow future use of an future infringing use. In our case, there was, again, no evidence of any business investment that would be lost to pitstop if they were not allowed to continue using the trademark and trade dress. There was not even any evidence of any, not just business investment loss, business loss itself. In fact, the evidence associated that with that was a statement by Mr. Miller from a question from the court. Was there any difference between your business before and after the re-imaging? Mr. Miller's response was no. There is no evidence. We still, is, is, is, I understand your argument, it all comes back to the fact that the district court aired and found in any prejudice as a result of the reliance upon the earlier representations that had been made. That is correct, Your Honor. And that argument continues because the prejudice that's required is got to be sharp in demanding for the reason that you, the people are continuing to use your mark. That is correct. And there's really two components of it. At the level of the affirmative defense of acquiescence, the reliance component, there has to be evidence of business investment and business development around. At the point, even if that is established, then at the point that might, in ordinarily would excuse damages in order to prevent injunction issuing, however, there has to be an additional prejudice and additional showing of loss of the business investment if it were not allowed to continue. That did not occur in this case. And the court's only finding in that regard again, I'll go back to the court, did not actually even enter a finding of either level of prejudice, either for the defense of acquiescence or the failure to enjoy future use. The court didn't find any, any, any, any finding of that prejudice instead. At one point it said it would be burdensome to remove. At another point it said they allowed their trade dress to be removed. Neither of those are findings of fact sufficient to support a finding of acquiescence or sufficient to allow infringing use to continue. And so we asked that they be reversed, both of those findings be reversed, both for a no evidence point and a misapplication of law to the facts. One question here, this is an injunction and it is based on supposed on equity and it, and the district court has a lot of discretion as long as it operates within the law to fashion and injunction. So I mean, how do you say the district court abused its discretion here other than to say that it misapprehended the requirement of prejudice in applying the doctrine of acquiescence. I mean, you clearly, the basis of the ruling is that you acquiesced in all of this and you acquiesced in the continued use of these trade marks. But did the district court abuse its discretion and if it had found some sort of prejudice other than the mere removal of the signage? It did abuse its discretion, Your Honor, and I could explain it best in the phrases that you use. They have discretion, the lower court has discretion to operate within the bounds of the law. That requires finding, having evidence of the elements of the affirmative defense and applying the law relating to acquiescence to their findings of fact. The lower court does not have, where there is no evidence of the elements of an affirmative defense. And when the findings themselves do not support a conclusion that an affirmative defense has been found, that is an abuse of discretion because the court did act beyond the bounds of the law. Okay, well, thank you very much. And now we will hear from Mr. Boyd representing Mill or Company. Mr. Arme, please the court. What we have here, and it's probably not very well stated in Appleese brief, we actually have three parts of the court's order. We have an absolute full injunction as to any unfettered use by Pitstop, use of the trademark without any limitation. Then we have a denial of the injunction for limited future use by Pitstop, which is essentially conditioned. If Pitstop complies with these conditions in the future, then the injunction is denied. And that's the acquiescence component. And then finally, when we get to a delusion, they couple both of those with a limited injunction to avoid the delusion. So we actually have three component parts here. And the acquiescence is the one that somewhat, our issue here is the reliance issue. But when you look at the Conan case, Conan says straight out. It says you either have reliance or you have substantial prejudice. Either or both of those meet the test for acquiescence. In this particular instance, there's really no question, and I don't think there's any dispute, that Pinzolo Newful and Well of Pitstop's use of the mark. Pinzolo in the words of the trial court proposed it, they planned it, they funded it, and they performed it. They put their workers out there and made it happen. So I don't think that's a dispute. The court, in its opinion, says the act of doing that, of doing just that, is what the implicit and explicit assurances are. You bet you can use it. We're going to put it on your station and allow you to do that. That's the implicit assurances, and it's the explicit insurance as well. Obviously, they're not saying we're putting this up that you can't use it. And the trial court was very, very specific on that. It's the logical flow, but they did it, they found it with a condition in that condition. Then mega finding that the defendant for prejudice because of the reliance on Pinzolo's assurances. I am sorry, Your Honor. I said the district court did not make a finding that the defendants were prejudiced because of the reliance on Pinzolo's assurances. That's correct, Your Honor. They simply made the district court made the statement, pitstop relied upon those insurances when they permitted the removal of their own trade dress. That was what the court held. And when you look at the Konehane case, which is the leading circuit case on the acquiescence issue, it specifically states that third prong requires either reliance or substantial prejudice. No, no, no. That's where I would read the doctrine of the doctrine of insurance. What is it? In a way, the doctrine relies reliance. You have to show that you did rely on the representations they made. The second is that the assurance was made. The doctrine of insurance was made. The reliance was made on the assurance and the reliance was to the prejudice off the defendant. I think that we're actually all saying the same thing here. But, you know, from my point of view, what you've got to show is whether the replacement calls or replacement of the signage, or the consulate satisfied the requirement of prejudice under the doctrine of acquiescence. Your Honor, I think that the way we're looking at prejudice and the way the trial court looked at prejudice is looking back at the time the assurances were made, not at some subsequent point. And so the cost of removing- I think you just tell me what your authority for that, the district court, if that is the case, how the district court was following the law and making that assumption. Well, I believe in the district court actually recites it in its opinion, it's straight out of Conean. It says, whether phrased as reliance or prejudice, the effect is the same. There was substantial economic investments made in Conean. Economic investments, I thought. There was some, but I think that's merely evidence of the substantial prejudice. I don't think it is a requirement, it's not required in Conean. But you don't have to make any economic investment at all in your area. I don't think that there- I think in order to have substantial prejudice, that a defendant actually has to do something and otherwise would have not done absent the plaintiff's conduct. That's a lovely- And that could be substantial investment. In this case, what it was, it was the loss of the complete identity of the prior business. To the extent that there was investment in that- But that whole thing is that they didn't lose any money by surrendering themselves to Pinsor. No, but your honor would occur- If they didn't lose any money, there's no prejudice. They made money by surrendering themselves to Pinsor. They lost their identity, your honor, as it's- Well, since it's not- Did it cost them anything? No, they made money by losing their identity. There's no prejudice, that's the only thing. And it sounds pretty good to me. Well- Let sure what a dirty you would lose and the more workplace if they sell making the money they were making before. Right, right. It's not a welcome prejudice. I guess at this point if you have a McDonald's that's been long time established and it turns into a jack in the box, there's no change in the entity. Because there's no change in the revenue. But it's obviously still something different. In this picture- Me, but changing identity is simply the loss of the mark. And I don't know what- Well, to the whole license, is there perpetual? Well, to the extent that pitstop had an identity and it ended up itself at some market lost its market gain, the Pinsor will mark. And if it were to be deprived of the Pinsor, a little more, then it would have to go back to its mark. And the court was pretty clear that while- You had an opportunity to show that kind of prejudice and you didn't show it. Well, I believe we did. You're on our in terms of the- No, you showed no economic losses. I understand it. Now, if you did, you can tell me about it. You're on our, we didn't quantify it in dollars and cents. Instead, what was done was through the testimony. It was demonstrated that the difficulty of removing that truck to us. And I'm asking you to cite me one case, because they say there's none, that holds that prejudice can be satisfied by the cost of removing the signs, as opposed to the loss of an investment- Business investment. I'll be honest with you, I'm unaware of the- The fact that- In fact, you can't cite a case to that effect that the cost of restoring the places prejudice, then the district who did it? Well, but your honor, in co-nans, we don't have a substantial investment question either. We don't have dollars and cents quantified in co-nans. I think they did. I think in co-nans, they had the whole rest of the individual had put all of his money into this one restaurant. So he had a huge investment under the mark of co-nans or whatever the mark was. And then co-nans came and had his picture taken with these people. And it was saying you're doing a great job here, and then that was the basis for the- For the defense of the doctrine of- Perhaps what I read into co-nans was not the dollars invested, but the fact that they ran co-nans for eight years, just like pitstop ran for its number of years, building up a good will under that mark. Based on the assurances in reliance. So I thought the evidence showed that the Penzole's concern was that this place pitstop with Brandon, pitsole, that Penzole all of the images went with that. And if I wanted to get my trucks all changed, I wouldn't necessarily get Penzole. They would substitute cheap stuff in there. So this is a reliance upon the selling product under the image of Penzole, and it's not Penzole. And then they'd come back and Penzole said, you can't do that. And I relied on my detriment. My identity has been lost. That's extraordinary. You're using their all, if by their allegations. You're using their images to self-cheap or all, making more money. The trial court specifically found in its findings the fact that pitstop actually made me more profit off of the Penzole. But more importantly, that Penzole was constantly being upsold and featured by pitstop. They all for pitstop offered a generic alternative for those who did not want. I'm just picking up, and maybe have the facts all wrong. I've read that, the record I'd careful with for sure. But as I read the papers here, the thing that precipitated this dispute was that your client was not overselling Penzole's product, or pitstop was purchasing from who they thought was an authorized Penzole distributor. There was an anonymous complaint apparently made to Penzole. If that point Penzole noticed and saying, we don't think you're selling Penzole product, the minute they found out about that complaint, they pulled every bit out of the shop, they took the barrels and said Penzole was segregating. What were they putting out of the shop when they complained? Oil that they had purchased in Penzole barrels from Latch Oil Company in East Texas. What I'm saying about you, what you're telling me is that they were doing exactly that. They were selling, why would you pull out this other oil? Sully based on the allegation they did not want to be in a situation where the product wasn't as it was stated. They had no reason to believe that it wasn't Penzole other than Penzole's own allegation that there were insufficient chemical tracers. Pitstop has no way of physically testing the oil. I just didn't follow what you just said. I thought you said on a complaint of Penzole, some non-immolts, whatever, and Penzole brought it to their attention, then they pulled out all, drums of all. I don't think you were telling me that they were putting out Penzole. They were doing exactly what the anonymous tip said they were doing. Your Honor, they were pulling out oil that they had purchased from Latch in Penzole packaging that had been represented to them as Penzole by Latch. You're telling me that all that you were throwing out had Penzole's label stamped on it. Yes, Your Honor. But it wasn't Penzole alone. According to Penzole, it was not Penzole oil. The problem is that there's no way for someone like Pitstop to test the tracers because they won't provide the data. Not only that, there are other lab facilities. But the mere allegation was enough to say, let's pull it out of the tank, let's keep the barrels that are marked Penzole that we acquired from Latch and put them over to the side. And it was found out through this lawsuit and immediately a third party complaint was filed against Latch for selling counterfeit oil and selling it to Pitstop as Penzole in Penzole barrels. Can you sum up what your position is? One, two, three, four. Another, two, three, four. Should we have found the district court? The re-imaging was complete. It was substantial. As Judge Hitter said, it was all over the place. And as a consequence, Pitstop, which had a red, white, and blue identity that had been in business for many, many years, ceased to exist and became Penzole's stationary billboard on a major thoroughfare. And they went from being it. Obviously the penit retailer to a Penzole facility. They could have simply gone in. Pitstop could have gone in and repainted their building and put on their awnings and maintained their own color. But that's not, you're not making any points right there. It's what you've done. Reduce this thing to its essence, to your position, to its essence. Why is the district court correct? As I understand it, the district court, the basic reason they are arguing that the district court is incorrect is that you made no investment, that there was no prejudice that resulted from their acquiescence to use their product and their signs. Now, why is that wrong? That is wrong, Your Honor, because there is nevertheless a prejudice as a loss of the Pitstop identity, which the district court took into account and that there is not necessarily a requirement that that be quantified. If it could be quantified in dollars and so. Okay, that's your argument. That's it. You've laid it out there. What about the Penzole Quaker, Tony argued that acquiescence would be a defense to damages for infringement. Past aims, but it does not allow the court to have the discretion to order in perpetuity that Pitstop can use Penzole's trademarks under certain conditions. What's your response to that? That's not what the district court actually did. What the district court did is it fashioned an equitable result. And it said, you were provided assurances that you could use this if you meet these various conditions, namely you buy from an authorized distributor, you eat your Penzole products and you do not carry another major brand. And provided they did that, then they're entitled to use the Penzole Quaker, which Penzole put all over their building. And they further ordered, that it is the court further ordered, that you could not continue to use the Penzole signage once this signage wore out. You could not replace it with new signage. So you could not, as soon as they got rid of this signage, you could no longer use that trademark. That's what they said. That's correct, Runner. I think it actually implies something even further than that. It said to me, the judge Hitter's order says, and not only that, you can't go out and build another Pitstop and put Penzole signage. You're enjoined and restrained from future erection of any exterior signage. I thought the evidence was these signs last 25 years. I thought the evidence from your witness was that he expected the sign to last 25 years. I want to say between 10 to 25 year order depending on the material. Your witness said he expected these Penzole signs, the new ones to last 25 years. That's correct, Runner. Penzole, I guess the record put up all their signage, somebody wants to sell their product and they put all that signage up. It's good for at least 25 years because to take it otherwise we destroy their identity. It's not a perpetual market just for the lifetime of the ordinary bird. That's correct. It's not a perpetual, it's for the life of the signage. If the signage lasts 25 years fine, if it lasts 10 years fine, they can't put new signage up. Nor can they erect any new building and use the same signage. But they're allowed to use the signage without any kind of contract for substantial period of time. They are allowed only if they feature Penzole. Right, under those conditions, but there doesn't have to be any, there's no contractual. No, there's no contract, and there was no contract in place when Penzole put it, put all the signage on the property. That contract had expired and Penzole was aware that it had expired. I've pretty not won the Dunedin Good, I know that's really. It's a funny thing about a forced situation. I guess one of the spouses may lose their identity, but I don't know that that means that you have to continue their relationship with 10-25 years. But it distracts me as an oddity of the way this has been applied as a trademark law in franchising what so be it. If I could address that, I think the entire point of the trademark is that there is intrinsic value in every trademark. Whether it be the pitstop trademark. Is there any sponsorship or affiliation going forward? I think that's a good word. By... To the extent that pitstop is only purchasing Penzole product from Penzole authorized dealers. But it's totally up to pitstop. It's its own whim. It's self-choice. Within the context of the injunction. And Penzole stop selling Penzole oil to pitstop tomorrow? That's an anti-trust question. I don't know the answer to. I would assume it's under contract law to assume gas. I don't know why they couldn't. Okay, Mr. Moore, thank you very much. And we will move to rebuttal now by Miss Ellison. Thank you. Two specific points in rebuttal. First, the evidence was that the oil product that was purchased by the investigator in 2010 was not Penzole product. The evidence also was an dispute. It was not that pitstop did buy from authorized dealer. The oil did come in pit...Penzole barrels. So pitstop did not know. There's no evidence that I saw that pitstop knew it was buying anything other than pitpins of oil oil. Latch was not an authorized distributor. The authorized distributor that pitstop should have been purchasing from and was purchasing some amounts from at that time was oil patch. Latch was not an authorized pencil. I assume that they weren't paying the same price for that oil that they were paying up Penzole for it. They wouldn't have been buying it either. One could survive in that area, Your Honor. And we would just make the point whether it was intentional or inadvertent through lack of quality control. It doesn't change the fact that a counterfeit product was sold to the public. That's undisputed. The other point in rebuttal is the evidence does not support and ordered the lower court find that pitstop completely lost its identity. Pitstop began as an oil change and automotive inspection business in 1992. It continued doing business as pitstop USA. In the re-imaging it is still prominently displayed. Pitstop USA is still prominently displayed on the facade of the building. The invoices at pitstop, this is all in the record. The invoices at the location prominently displayed pitstop USA. They even have t-shirts made that have the emblem pitstop USA. They continue today to do business as pitstop USA. They did not lose their identity. The court didn't find that they lost their identity. Even if it had, it still doesn't rise to a business investment or development of a business around dependence and reliance on use of the trademark as is required. This court has pointed out in Conean and Abraham. In Conean, they built four additional restaurants in reliance on utilization of the name Conean's Pizza. Four additional businesses that is developing business around the belief and assurance it could call their businesses Conean's Pizza. That is the kind of business investment that has to be shown by the appellees to establish the element of acquiescence. In Abraham, the element, and although that was a latches case, let me be clear, the court said the inquiry regarding reliance is the same or similar. In that case, Abraham spent millions of dollars rebuilding its business three times in reliance on utilizing the trademark symbols. Interestingly, in that case, the trademark protection for those symbols came after Mr. Abraham had begun his use and had utilized them for years. Finally, owners, I would just reiterate our request that this court reverse the lower courts finding of acquiescence. First, because there is no evidence of the elements of assurance or reliance necessary for a finding of acquiescence. Secondly, the actual findings of the court in those areas are insufficient to support a conclusion that acquiescence was established. Finally, you want to survey cake and junction is what you say. You are, we'd like to be either vacate the injunction or remain the injunction with instruction that an injunction prohibiting all future use issue immediately because there is no evidence of loss of future business at all. If they are not allowed to continue utilizing the trademark and trade dress again in an infringing matter, there is no sponsorship or affiliation between these parties at this time. Thank you, owners