[00:00:00] Speaker 03:
May it please the court.

[00:00:02] Speaker 03:
My name is Jason Wilson.

[00:00:04] Speaker 03:
I'm appearing on behalf of the appellants, Open Artificial Intelligence, Inc.

[00:00:09] Speaker 03:
and Guy Ravine.

[00:00:11] Speaker 03:
I'm going to focus my argument today on two points.

[00:00:16] Speaker 03:
One, that this was an inappropriate mandatory injunction.

[00:00:20] Speaker 03:
And secondly, that there was an unreasonable delay in seeking the injunction

[00:00:26] Speaker 03:
which undercuts any case for, um, irreparable harm.

[00:00:31] Speaker 02:
I had a preliminary question for you.

[00:00:33] Speaker 02:
I know before the district court, there was a change of counsel in this case.

[00:00:37] Speaker 02:
And one of the arguments made was essentially we needed an opportunity to

[00:00:41] Speaker 02:
to supplement some things, maybe update the record a little bit, and that was not allowed.

[00:00:45] Speaker 02:
Is there anything in the record, and please don't get into attorney-client communications, is there anything actually in the record that says why Bird-Marella is no longer counsel in this case?

[00:00:57] Speaker 03:
There is not, Your Honor.

[00:00:58] Speaker 03:
Okay, fair enough.

[00:01:00] Speaker 02:
You may proceed with your argument.

[00:01:01] Speaker 02:
I just want to check that box.

[00:01:03] Speaker 03:
Starting off first with why is this a mandatory injunction?

[00:01:06] Speaker 03:
So let's talk about the status quo before they file the lawsuit.

[00:01:11] Speaker 03:
And by the way, actually, it would be very useful if we use the lens of thinking of this as a reverse confusion case in which the senior user, which I would contend is my client, Open Artificial Intelligence, is getting swamped out in advertisement and the marketing ventures of the junior user, OpenAI.

[00:01:34] Speaker 03:
And that's an important lens to have, and a touchstone case for that is a Marquis case, which Judge Owens was on years ago.

[00:01:44] Speaker 03:
So in this case, the senior user, Opal Artificial Intelligence,

[00:01:50] Speaker 03:
had a website, was using its website in connection with his interest in artificial intelligence, eventually progressed to using that website to have an image generator.

[00:02:05] Speaker 04:
When was that image generator first on that website?

[00:02:11] Speaker 03:
On my client's website?

[00:02:13] Speaker 03:
Correct.

[00:02:14] Speaker 03:
I believe

[00:02:17] Speaker 03:
It was November 16th, 2020.

[00:02:20] Speaker 04:
But the district court said that all that was on on November 16th was, you know, a landing page with, in the meantime, play with some stable diffusion, which was a third-party product.

[00:02:35] Speaker 04:
When did you actually have a product of yours that was an image generator on there?

[00:02:41] Speaker 03:
The image generator itself wasn't there until November 16th, 2022.

[00:02:46] Speaker 03:
There were other activities on the website that were outlined in the rule 59 motion.

[00:02:54] Speaker 04:
I mean, the district court says specifically in the opinion, it says defendant ravine.

[00:02:59] Speaker 04:
represents that he created and publicly launched his own text to image generator on November 16th, 2022.

[00:03:06] Speaker 04:
As shown below, however, OpenAI was only hosting the third party stable diffusion in November of 2022 and then has the picture that says in the meantime, play with some stable diffusion.

[00:03:21] Speaker 04:
Stable diffusion is not the image generator from your company, right?

[00:03:27] Speaker 03:
I understand.

[00:03:28] Speaker 03:
I understand your point, Your Honor.

[00:03:30] Speaker 03:
Yes, um, I understand your point.

[00:03:33] Speaker 03:
The hosting started.

[00:03:34] Speaker 03:
My understanding is that the hosting started November 16 2022.

[00:03:39] Speaker 03:
Um, but my point is my point is that when are you using the mark in connection with your goods and services?

[00:03:50] Speaker 03:
He was using the mark in connection with his goods and services as far back as 2015.

[00:03:56] Speaker 04:
No, but in terms of an image generator.

[00:03:59] Speaker 03:
And in terms of an image generator.

[00:04:01] Speaker 04:
Does it change from being stable diffusion to a different, your own image generator at some point?

[00:04:07] Speaker 04:
And if so, when is that?

[00:04:10] Speaker 03:
I don't know the answer to that question, Your Honor.

[00:04:15] Speaker 03:
I would contend, though, it doesn't matter.

[00:04:19] Speaker 03:
because he was using his mark earlier in other ways in providing services.

[00:04:28] Speaker 04:
We have to review the district court's factual findings under deferential standards.

[00:04:33] Speaker 04:
The district court didn't seem to think that the earlier uses were uses in commerce that triggered anything.

[00:04:42] Speaker 04:
This issue of what happens with an image generator then becomes important and your brief puts a lot of weight on this November 16th.

[00:04:51] Speaker 04:
That's why I'm focusing on November 16th because the district court seemed to make a factual finding that you were using it

[00:04:58] Speaker 04:
The mark is on the web page, but not in connection with your goods and services, because it's a third-party thing that you've just linked to.

[00:05:06] Speaker 04:
And my question to you is, do you contend that that counts, or did the image generator change at some later point?

[00:05:14] Speaker 04:
And if so, what is that?

[00:05:15] Speaker 03:
So I contend that that counts, Your Honor.

[00:05:17] Speaker 03:
We contend that that counts.

[00:05:19] Speaker 03:
But the more important point is the registration of our mark originally in 2017 when we obtained the mark was for class 42 services.

[00:05:32] Speaker 03:
And even though it wasn't for providing the same types of goods,

[00:05:39] Speaker 03:
that the appellee was providing, the United States Trademark and Patent Office on four separate occasions decided not to give them trademark rights.

[00:05:51] Speaker 03:
The salient fact here for the purposes of viewing this as a mandatory injunction was the status quo was at the time that the lawsuit was filed was

[00:06:03] Speaker 03:
We were recognized by the United States Trademark and Patent Office as the senior user with some rights.

[00:06:12] Speaker 03:
As a result of the fact that we were the senior user with rights, the US Trademark and Patent Office first alerted them in 2017 that our application was out there.

[00:06:25] Speaker 03:
Later on, alerted them in early 2023 that

[00:06:35] Speaker 03:
their mark had not required distinctiveness, hadn't required secondary meaning, so wasn't superior to our mark.

[00:06:44] Speaker 03:
And then later on in further determinations in 2023, in February, which is at ER 906, excuse me, the specific issues raised in ER 908, and then in April in the specific

[00:07:04] Speaker 03:
decision is in ER 955 said there's a likelihood of confusion.

[00:07:10] Speaker 03:
And so let me explain why it's so important to view this as a reverse confusion case.

[00:07:16] Speaker 03:
In a reverse confusion case, there is confusion, but the confusion is caused by the junior holder trying to swap by advertising the rights of the senior holder.

[00:07:30] Speaker 03:
And the trademark office recognized the possibility of confusion, refused to give them the rights that they wanted, which is superior trademark rights.

[00:07:42] Speaker 03:
So what they did here is they went to the district court and got the district court in a expedited procedure of a preliminary injunction to decide that they had superior trademark rights.

[00:07:57] Speaker 03:
There was no decision before the district court's preliminary injunction order that they were the senior holder.

[00:08:06] Speaker 03:
The decision of the USPTO, which I recognize can be disregarded by a trial of fact and a trademark trial, was that we were the senior holder.

[00:08:19] Speaker 03:
I find the use of a preliminary injunction to flip who the senior holder is to be extraordinary and unprecedented.

[00:08:28] Speaker 03:
I would also note that the reason why this is a mandatory injunction that needs to be viewed through a less, a more stringent lens is what we have here is a takedown order that we have to take down

[00:08:46] Speaker 03:
our domain name, Open.ai, which he registered on March 15th, 2015, eight months before this company ever existed.

[00:08:59] Speaker 01:
So let me ask you this.

[00:09:01] Speaker 01:
To the extent that you are arguing mandatory injunction, this was a mandatory injunction that met a higher standard, what remedy are you seeking?

[00:09:09] Speaker 01:
Just to allow the domain name to be used?

[00:09:11] Speaker 01:
No, I think it should entirely be reversed and reversed your offer.

[00:09:17] Speaker 01:
You can't limit the scope of the injunction to conform to the standard?

[00:09:23] Speaker 03:
Well, there are two different issues there.

[00:09:25] Speaker 03:
First of all, I think it is a mandatory injunction.

[00:09:28] Speaker 03:
It should be reversed because the law and facts here do not clearly favor them.

[00:09:35] Speaker 03:
The fact that the USPTO reached a different adjudication as to who the senior holder is should, at a minimum, prevent them from getting a mandatory injunction.

[00:09:47] Speaker 03:
With respect to why, I think it should be fully reversed and vacated

[00:09:52] Speaker 03:
and not for another hearing under a higher mandatory injunction standard is that there's been unreasonable delay here.

[00:10:01] Speaker 03:
Let's be clear.

[00:10:02] Speaker 01:
But I don't think you quite answered my question.

[00:10:04] Speaker 01:
Are you just saying you want the mandatory and you're seeking a complete reversal?

[00:10:09] Speaker 01:
Because the other alternative is to say, well, it's a mandatory injunction if we think it is.

[00:10:14] Speaker 01:
And so district court reconsider it and make it a prohibitory injunction.

[00:10:20] Speaker 01:
That is a remedy that this court could decide to... Well, I'm asking what you want, and I think your answer is you just want a flat-out victory.

[00:10:33] Speaker 01:
Well, in two parts, Your Honor.

[00:10:35] Speaker 01:
First of all... I'm just asking what you want.

[00:10:37] Speaker 03:
Okay, okay.

[00:10:39] Speaker 03:
I would want it reversed and remanded because it's an inappropriate mandatory injunction.

[00:10:44] Speaker 03:
So that's number one.

[00:10:47] Speaker 03:
So a remand, there could be a redetermination, right?

[00:10:50] Speaker 03:
The reason why I do not think there should be a redetermination and it should, even for prohibitory injunction, is because the delay in this case is too long and undercuts a finding of a matter of law of irreparable harm.

[00:11:08] Speaker 03:
So why do I say that?

[00:11:11] Speaker 03:
The focus of the injunction, what's in the order, what the appellee wanted, they wanted the website shut down.

[00:11:21] Speaker 03:
Okay?

[00:11:21] Speaker 03:
That's what they got in the order.

[00:11:23] Speaker 03:
That's the goal of their order.

[00:11:25] Speaker 03:
Not the website limited, that he couldn't put up an image generator, which is the reason why they claim they brought their complaint.

[00:11:41] Speaker 03:
They want it shut off.

[00:11:43] Speaker 03:
And that's what happened.

[00:11:44] Speaker 03:
If you go to the website now, there's nothing there.

[00:11:48] Speaker 03:
If that's the goal, to shut down the website, they knew about the website in 2015.

[00:11:54] Speaker 03:
It's in the record there was a discussion in 2015 where a principal of the appellee asked to buy the web domain name and asked us to rebrand.

[00:12:07] Speaker 03:
We didn't do that.

[00:12:08] Speaker 03:
about a year and a half before they bought, they brought this lawsuit on February 19th, 2022, and it's, I believe, at ER 953.

[00:12:22] Speaker 03:
Sam Altman, the famous guy you see on TV, goes to Guy Ravine and says, I'd like to buy your domain name and the related IP rights.

[00:12:37] Speaker 03:
Isn't that interesting?

[00:12:38] Speaker 03:
Sam Altman says, I want the domain name and the related IP rights.

[00:12:45] Speaker 03:
To me, that's an admission and concession that we had IP rights.

[00:12:49] Speaker 02:
Or it's to avoid paying all these lawyers.

[00:12:52] Speaker 02:
I mean, it could be that too, right?

[00:12:54] Speaker 03:
But be that as it may, Your Honor, what's the most salient point for irreparable harm?

[00:13:05] Speaker 03:
This court decided in Bonn

[00:13:07] Speaker 03:
or observed in Bonk in Garcia versus Google that even a delay of a few months, and I think in Garcia it was three or four months, can be too long.

[00:13:21] Speaker 03:
From the time that Sam Altman made his offer to purchase the domain name and the related IP rights to the filing of this lawsuit is 18 months.

[00:13:34] Speaker 02:
Let me ask you this real quick, just in terms of

[00:13:36] Speaker 02:
What's next in this case?

[00:13:38] Speaker 02:
So obviously, I know what you want to do is us to do in this case.

[00:13:41] Speaker 02:
Yes.

[00:13:41] Speaker 02:
But there is presumably a trial in this case.

[00:13:43] Speaker 02:
Yes, there is.

[00:13:44] Speaker 02:
Is there a trial date in this case?

[00:13:45] Speaker 03:
Yes, October 13th, 2025.

[00:13:50] Speaker 02:
OK, so the question for us today is merely, what happens between now and then?

[00:13:54] Speaker 02:
Because this is all going to be relitigated at that trial.

[00:13:56] Speaker 03:
That's true, but right now because the website is taken down, he can't operate his business for any purpose.

[00:14:04] Speaker 03:
It's detrimental.

[00:14:05] Speaker 03:
I mean, obviously at some point he could obtain money damages for that, but I still think

[00:14:13] Speaker 03:
it should be reversed and remanded.

[00:14:15] Speaker 03:
And finally, in my last 45 seconds here, if the court was to conclude to that reverse, because of the damage that's being done, we would ask that any mandate be issued upon publication of the opinion.

[00:14:34] Speaker 02:
Gotcha.

[00:14:35] Speaker 02:
We'll give you two minutes for rebuttal.

[00:14:37] Speaker 03:
Okay.

[00:14:37] Speaker 03:
Thank you very much.

[00:14:51] Speaker 00:
Good morning, Your Honors.

[00:14:52] Speaker 00:
May it please the court, Margaret Caruso for Appellee Plaintiff Open AI, Inc.

[00:15:00] Speaker 00:
I'd like to start by addressing some of the questions Your Honors just had and clarifying the record on those points.

[00:15:08] Speaker 00:
To begin with the question of the defendant's image generator.

[00:15:12] Speaker 00:
They have never had an image generator that they developed.

[00:15:17] Speaker 00:
It has always, since November 2022,

[00:15:21] Speaker 00:
been that stable diffusion image generator.

[00:15:24] Speaker 04:
I mean, your own expert had a timeline of how it changed.

[00:15:31] Speaker 04:
And that one shows that on December, so on November 26, 2022, it has the one that the district court referenced in the part that I quoted.

[00:15:41] Speaker 04:
But then it adds on December 5, it looks very different.

[00:15:45] Speaker 04:
And it's an image generator.

[00:15:47] Speaker 04:
And it doesn't say anything about stable diffusion.

[00:15:51] Speaker 04:
What does the record say about what that was?

[00:15:53] Speaker 00:
Right.

[00:15:53] Speaker 00:
What the record shows is if you look at the terms of confusion, sort of the terms of service that they had at the time, it reflected they were still using the stable diffusion image generator.

[00:16:04] Speaker 00:
And subsequent discovery shows they never developed their own.

[00:16:09] Speaker 00:
They always use the stable diffusion one.

[00:16:11] Speaker 04:
We don't really have a finding from the district court on that.

[00:16:15] Speaker 04:
Part of the problem that I have is that you read the briefs and everyone seems to agree on what the relevant legal standard is, and it's the standard from the converse

[00:16:29] Speaker 04:
case, which is whether or not you've established that the mark had acquired secondary meaning before the first infringing use by the alleged infringer.

[00:16:39] Speaker 04:
Everyone seems to agree that's the standard.

[00:16:42] Speaker 04:
The problem is it's just completely absent from the district court's decision, and the district court's findings don't really line up with that standard.

[00:16:51] Speaker 04:
reflected in this conversation we had about these details.

[00:16:55] Speaker 04:
So my question is, why doesn't this just have to go back, because she just missed what the correct standard was and didn't make findings that tailored to that?

[00:17:05] Speaker 00:
Well, I think that the record and her opinion both support there being secondary meaning at the very latest, before November 2022, when the stable diffusion image generator.

[00:17:19] Speaker 04:
But she relies a lot on chat.

[00:17:22] Speaker 04:
which comes out at the very end of November, and then when she makes the actual finding, the clearest statement of secondary meaning, it bleeds into early 2023 in the operative sentence.

[00:17:37] Speaker 00:
So it just... In some sentences it does, in others it does not.

[00:17:43] Speaker 00:
There's a few things I could say about the chat GPT point, which of course is still before

[00:17:48] Speaker 00:
the defendants claim to have had any users at all.

[00:17:52] Speaker 04:
But she doesn't, there's no findings on that specific point.

[00:17:57] Speaker 04:
It really, you know, we emphasized in converse, we said because the relevant date is so important to the secondary meaning analysis, we find that a specific determination of secondary meaning as of the relevant date must be made.

[00:18:11] Speaker 04:
And that doesn't seem to be present in this opinion.

[00:18:15] Speaker 00:
Well, she also says that there was secondary meeting by September 2022, and that is amply supported in the record as well.

[00:18:25] Speaker 00:
September 2022 is when OpenAI made available its Dali image generator product without a wait list.

[00:18:38] Speaker 00:
Now that wasn't the first day it was available.

[00:18:40] Speaker 00:
As of September 2022,

[00:18:43] Speaker 00:
there were 1.5 million users already using it who had been onboarded in the summer.

[00:18:51] Speaker 00:
And we have, in the record, Do it instantly acquired secondary media?

[00:18:55] Speaker 00:
No, no, no, not instantly.

[00:18:57] Speaker 00:
It had been introduced.

[00:18:58] Speaker 00:
So if you look at, it wasn't first.

[00:19:05] Speaker 00:
I can understand why it's confusing, because the defendants repeatedly characterized it as being introduced in September of 2022.

[00:19:13] Speaker 00:
In fact, if you look at the announcement that was made in September 2022, and this is in the diet declaration, you can see that it references, this is volume six, ER 1219 to 1220.

[00:19:42] Speaker 00:
You can see that it references that OpenAI previewed the product in April to 200 artists, researchers, and trusted users.

[00:19:52] Speaker 00:
Then beginning in May, OpenAI onboarded 1,000 users per week.

[00:19:58] Speaker 00:
And then in July, and there's a separate page, exhibit F to the diet declaration on page 1236,

[00:20:06] Speaker 00:
announcing the beta launch and through that, over a million users requested access of OpenAI and gained access to it.

[00:20:15] Speaker 00:
And as a result, not only do you have these by September 2022, more than 1.5 million users, you have a lot of press about this.

[00:20:27] Speaker 00:
So you have the New York Times referring to OpenAI's Spring 2022 unveiling of Dali as the first product to, quote, capture the public attention regarding generative AI technology.

[00:20:45] Speaker 00:
In another article, and that's on volume seven, ER 1370, in another New York Times article, it referred to

[00:20:55] Speaker 00:
that Dali product in the summer of 2022 as having been a hit with consumers.

[00:21:03] Speaker 00:
The Washington Post, this is page 1389 in the record, refers to Dali as having gone viral.

[00:21:13] Speaker 00:
Fortune Magazine referred to it as a hype generator for open AI, page 1402.

[00:21:22] Speaker 00:
Bloomberg,

[00:21:24] Speaker 00:
referred to OpenAI's clever marketing and success, and in March 2023, called OpenAI out as having been on a promotional tear for the last two years, citing glowing media coverage for earlier projects like its GPT-3 API product, not ChatGPT, but GPT-3, and Dali,

[00:21:54] Speaker 00:
And of course, Time Magazine had named OpenAI one of the most influential companies in 2022.

[00:22:03] Speaker 00:
This kind of evidence is the kind of evidence that dilution plaintiffs, plaintiffs who are claiming nationwide fame among the general consuming public, would be happy to have.

[00:22:17] Speaker 00:
But that's not the standard for secondary meaning.

[00:22:20] Speaker 00:
The secondary meaning standard is just that

[00:22:22] Speaker 04:
the primary significance of the term.

[00:22:33] Speaker 04:
pretty significant factual mistake with the date was caught and corrected.

[00:22:39] Speaker 04:
The district court then blue pencils the key holding at the end of the section and says that at least, you know, was a bona fide user of the disputed mark since at least September of 2022, if not earlier, and that its mark by that point, and then it changed it to had acquired secondary meaning,

[00:23:01] Speaker 04:
But then that's at the tail end of a two-page section where most of the evidence discussed is post-September 2022.

[00:23:10] Speaker 04:
And that's just kind of startling.

[00:23:12] Speaker 04:
It's like you make a finding of September 22, and most of the evidence is post.

[00:23:18] Speaker 04:
Something seems wrong here.

[00:23:20] Speaker 04:
I mean, it may be that you get remanded, and it's the same thing, because the right findings will be made.

[00:23:27] Speaker 04:
And I hear what you're saying, that they don't have an actual use.

[00:23:31] Speaker 04:
And so under the right test, it's all going to line up.

[00:23:35] Speaker 04:
And maybe we should even leave this in place while it's remanded.

[00:23:39] Speaker 04:
But I'm wondering, it seems like this opinion just is so flawed in terms of the wrong legal standard and then the facts.

[00:23:48] Speaker 04:
I don't know how it's salvageable.

[00:23:50] Speaker 00:
Your honor.

[00:23:52] Speaker 00:
It does ultimately decide that there was secondary meaning by September 2022.

[00:23:57] Speaker 00:
And that was not clear error.

[00:23:58] Speaker 00:
And just the sites that I've just read out, as I said.

[00:24:02] Speaker 04:
But even you were quoting things from articles in 2023.

[00:24:05] Speaker 00:
Right.

[00:24:06] Speaker 00:
But those articles in 2023 are looking back and saying, back in at that time, in 2022, in the spring of 2022, in the summer of 2022, this was viral.

[00:24:18] Speaker 00:
This was a hit.

[00:24:19] Speaker 00:
This was a hype vehicle for open AI.

[00:24:22] Speaker 00:
So much like a history book is about things that happened earlier, those articles are referring to the perception that existed in early 2022 with about open AI.

[00:24:35] Speaker 00:
So that's just incredibly powerful evidence of secondary meaning that exists here.

[00:24:43] Speaker 00:
As to the date change which resulted from the defendants raising the issue of the PTO's decision, I do want to also address that because the impression that one might have from

[00:25:00] Speaker 00:
defendants' arguments is that the PTO considered this secondary meaning evidence that I've just described or any secondary meaning evidence that OpenAI submitted to it and found it insufficient.

[00:25:15] Speaker 00:
That never happened.

[00:25:18] Speaker 00:
That is not in the record.

[00:25:21] Speaker 00:
What happened is that the PTO, upon the

[00:25:27] Speaker 00:
applications being made found that the mark was not inherently distinctive.

[00:25:34] Speaker 00:
It was descriptive.

[00:25:36] Speaker 00:
Therefore, it could only be registered with a showing of acquired distinctiveness.

[00:25:42] Speaker 00:
The next step that happened was OpenAI said, well, we've been using this mark exclusively for five years.

[00:25:48] Speaker 00:
There is a presumption then that we've acquired secondary meaning.

[00:25:53] Speaker 00:
Please register our mark.

[00:25:55] Speaker 00:
The PTO said, no, that presumption alone isn't gonna get you there.

[00:25:59] Speaker 00:
Try again.

[00:26:02] Speaker 00:
Then while that decision was pending, the defendant, Mr. Ravine, submitted a letter of protest and said, hey, I have this supplemental registration out there.

[00:26:14] Speaker 00:
You should deny their mark based on the supplemental registration.

[00:26:19] Speaker 00:
The PTO examiner said, ah, look, there is this here too.

[00:26:24] Speaker 00:
Open AI, when you respond, make sure you respond to that as well.

[00:26:28] Speaker 00:
And that's what the record shows.

[00:26:30] Speaker 00:
And then those proceedings essentially ended even though, well, Open AI did submit secondary meeting evidence, but before the PTO could consider that, those proceedings were suspended because of this lawsuit.

[00:26:45] Speaker 00:
So just so that the record is clear,

[00:26:48] Speaker 00:
the PTO did not consider this secondary meaning evidence and find it deficient.

[00:26:53] Speaker 00:
And of course, even if they had, it's a non-final decision at this point, and the non-final decisions, there's a reason they're non-final, because many marks only become registered further down the application process.

[00:27:09] Speaker 04:
If I understand, what the district court did when it fixed the date error was, because the original order seemed to suggest that she was relying on the PTO's determination, which she believed was in January of 2022, and then the things changed after that.

[00:27:30] Speaker 04:
when she realized the date was actually 2023, she said, well, that's a determination about a January 2022 application.

[00:27:37] Speaker 04:
And therefore things changed after that.

[00:27:41] Speaker 04:
Is that fair to say that the January 2023 determination is based only on a snapshot of things as of a year earlier?

[00:27:52] Speaker 04:
Yes.

[00:27:54] Speaker 04:
So there was no evidence before the PTO or submissions about things between January of 22 and when it issued that decision in 23?

[00:28:04] Speaker 00:
There was no evidence that the PTO had considered before issuing a non-final refusal based on, as I said, the presumption and the confusion issue.

[00:28:22] Speaker 01:
Before you sit down, would you address the scope of the injunction?

[00:28:25] Speaker 01:
I realize you argue that they didn't raise it below, but the injunction goes beyond, or preliminary injunction goes beyond preserving the status quo and actually affirmatively directs them to take down their website.

[00:28:39] Speaker 00:
So that's very common in trademark injunctions, and they're generally deemed prohibitory when they do that.

[00:28:45] Speaker 00:
That's what the defendants have to do.

[00:28:47] Speaker 00:
They have to stop the infringement by stopping what's causing the confusion.

[00:28:51] Speaker 00:
And what was happening before November 2022 when they put up the stable diffusion image generator was that the defendant's website was directing to the plaintiff's website.

[00:29:03] Speaker 00:
And so to reinstate the status quo, they would redirect to our website.

[00:29:09] Speaker 00:
We would be fine with that too, but we suspect they would not.

[00:29:13] Speaker 00:
In terms of, you know, is there some theoretical thing if they wanted to, you know, start selling mushrooms on their website?

[00:29:22] Speaker 00:
Could they maybe do that without causing confusion?

[00:29:24] Speaker 00:
Possibly, but they haven't said that they need to do that.

[00:29:27] Speaker 00:
If they needed to do that, they could petition the court to modify.

[00:29:30] Speaker 04:
But the injunction goes beyond a prohibition on using the mark in connection with the sale of goods and services.

[00:29:39] Speaker 04:
Should it be narrowed to just that?

[00:29:43] Speaker 00:
It's unclear what they could do at this point, having already created this sort of magnet for confusion that wouldn't be confusing through that website.

[00:29:56] Speaker 00:
And Mr. Ravine has other websites.

[00:29:58] Speaker 04:
If he wanted to... But why couldn't he have this website and then, you know, put whatever else he wanted on it?

[00:30:03] Speaker 04:
Why is that?

[00:30:05] Speaker 04:
justified by the showing here.

[00:30:10] Speaker 00:
Well, because he hasn't identified what he would put on it that wouldn't be confusing.

[00:30:14] Speaker 00:
If he wants to identify something that wouldn't be confusing, he could petition the court to modify the injunction to accommodate that.

[00:30:20] Speaker 02:
That was my question.

[00:30:21] Speaker 02:
Is there anything that would prevent

[00:30:23] Speaker 02:
if this case were to go back to the district court, not talking on a remand.

[00:30:27] Speaker 02:
This case is still in the district court.

[00:30:29] Speaker 02:
It's going to be in support until trial.

[00:30:31] Speaker 02:
Is there anything preventing the other side from petitioning the court to say, hey, we got a great idea.

[00:30:35] Speaker 02:
We're going to do open AI happy meals.

[00:30:38] Speaker 02:
And this is a great idea.

[00:30:39] Speaker 02:
Can we do that?

[00:30:40] Speaker 02:
There's nothing that prevents them from going to the district court and asking for it to be modified there, correct?

[00:30:44] Speaker 00:
Absolutely.

[00:30:47] Speaker 00:
Thank you, Your Honors.

[00:30:47] Speaker 00:
I see I'm out of time.

[00:30:49] Speaker 00:
We ask that you affirm the court's decision below.

[00:30:52] Speaker 00:
It's amply supported by the record and not clear error.

[00:30:56] Speaker 02:
Thank you, Council.

[00:31:02] Speaker 03:
Very quickly, Your Honor.

[00:31:04] Speaker 03:
There was use of the website, not an image generator, but other uses.

[00:31:09] Speaker 03:
He was promoting a discussion of artificial intelligence.

[00:31:14] Speaker 03:
The reason for the redirection is that unsecured traffic got redirected, but secured users who had registered with the website, they were exposed to a discussion of artificial intelligence issues.

[00:31:31] Speaker 02:
Is that in the record?

[00:31:34] Speaker 03:
I believe it's in the Rule 59 motion, but I don't know off the top of my head.

[00:31:42] Speaker 03:
In the Rule 59 motion, there's a fulsome discussion of what he was using the website for.

[00:31:47] Speaker 03:
There were users, there were interactions.

[00:31:50] Speaker 03:
It was, I think, consistently in the hundreds.

[00:31:55] Speaker 03:
By the time that

[00:31:58] Speaker 03:
He sought his registration.

[00:32:01] Speaker 03:
I think he had several hundred, 393 interactions.

[00:32:07] Speaker 01:
Right, but you didn't raise the scope of the injection before the district court, did you?

[00:32:13] Speaker 01:
You didn't say to the district court what you were saying to us.

[00:32:15] Speaker 01:
Now, there are other uses we want to make use of.

[00:32:20] Speaker 03:
That was not raised at the oral argument in front of the district.

[00:32:23] Speaker 01:
Basically, reading between the lines of your argument, what you want is to be able to continue your allegedly infringing use on the website, right?

[00:32:34] Speaker 03:
No, well.

[00:32:36] Speaker 01:
I said allegedly.

[00:32:38] Speaker 01:
I mean, that's what you want during the pendency of this case.

[00:32:41] Speaker 01:
That's why you want your domain name back, right?

[00:32:44] Speaker 03:
We want our domain name back because we can't use it in any way whatsoever.

[00:32:50] Speaker 03:
What I would say is that the reason why they were getting blocked in the past is we registered in class 42 that services.

[00:33:01] Speaker 03:
The USPTO observed, and it would be legitimate to observe, that observances and goods are closely aligned.

[00:33:11] Speaker 03:
So we believe we already had occupied the field.

[00:33:14] Speaker 03:
I see him out of time.

[00:33:16] Speaker 03:
And unless there's a specific question, thank you very much.

[00:33:19] Speaker 02:
All right, thank you, both counsel, and for your briefing and argument.

[00:33:22] Speaker 02:
Very interesting case, very well argued, and we really do appreciate that.

[00:33:26] Speaker 02:
This matter is submitted, and we're done for the week.

[00:33:29] Speaker 02:
Thank you so much, everybody.