[00:00:00] Speaker 02:
This is case number 20-1847, Bobcar Media versus Aardvark Event Logistics.

[00:00:06] Speaker 02:
Mr. Cohen, please proceed.

[00:00:09] Speaker 03:
Thank you, Your Honor.

[00:00:11] Speaker 03:
Your Honor, may it please the court?

[00:00:12] Speaker 03:
My name is Morris Cohen.

[00:00:13] Speaker 03:
I represent Bobcar in this matter.

[00:00:15] Speaker 03:
Your Honors, as the Second Circuit has held an ING, a district court's failure to provide adequate notice before a rule summary judgment dismissal is almost always reversible error.

[00:00:29] Speaker 03:
Here, the trade dress claim of Bob Carr was dismissed on grounds that were never raised by Bob Carr.

[00:00:36] Speaker 03:
It was dismissed sua sponte with no prior notice to Bob Carr to address the court's position.

[00:00:41] Speaker 03:
In particular, the court found that Bob Carr had to show it had trade dress and secondary meaning by Ardbark's first infringement in quote unquote 2008.

[00:00:52] Speaker 03:
However, there are multiple reasons why we object to that finding.

[00:00:57] Speaker 03:
The first is that it's undisputed that Aardvark's first accused infringement was not in 2008, it was in 2009.

[00:01:06] Speaker 03:
Specifically, Aardvark so stated in their sworn interrogatory responses at A2031 and also so stated in its brief, its later brief at A3670 in the appendix.

[00:01:19] Speaker 03:
Had the court raised these issues and given us notice, we would of course respond to them below.

[00:01:25] Speaker 03:
However, because of the fact that they never raised them, we never had a chance to respond to them.

[00:01:29] Speaker 03:
And as I indicated, the Second Circuit has held it such a proceeding or such a procedural course of action is almost always reversible error.

[00:01:39] Speaker 03:
The second issue that we have is that the court referred to the infringement.

[00:01:44] Speaker 03:
However, there was not just one infringement, there were multiple infringements.

[00:01:48] Speaker 03:
There were a series of infringements that began in 2009.

[00:01:53] Speaker 03:
However, there were later infringements in 2015 and in 2016.

[00:01:57] Speaker 03:
And as a result, even if, arguing though, the court would not find secondary meaning as of 2009, which it did not even consider, there were still later infringements in 2015 and 16 where it could have found, or a jury could have found, secondary meaning.

[00:02:14] Speaker 03:
And this court itself, for example, in the Munchkin case, said that, and I'm referring now to 2009 date,

[00:02:20] Speaker 03:
that less than two years arguably could be enough for secondary meaning.

[00:02:24] Speaker 03:
So had the court considered the proper date, the 2019 date, it arguably could have been enough for a jury to find secondary meaning.

[00:02:33] Speaker 03:
And each infringement, as we indicated, should have been dealt with separate because the case law refers to secondary meaning by the infringement, and there was more than one infringement.

[00:02:42] Speaker 03:
In addition, the court made various, in our position, legal errors on the motions for summary judgment and errors in factually

[00:02:49] Speaker 03:
making determinations that were really for a jury.

[00:02:52] Speaker 03:
As one example, the court erroneously viewed surveys as the be-all and end-all.

[00:02:59] Speaker 03:
And the Second Circuit has addressed this.

[00:03:02] Speaker 03:
And for example, in the Thompson case, the Second Circuit has said that no single factor is determinative, and every element need not be proved.

[00:03:11] Speaker 03:
We acknowledged that out of six factors on secondary meaning, we did not have one.

[00:03:15] Speaker 03:
We did not have a survey, which was

[00:03:17] Speaker 03:
one of the factors, so we only went for five of the factors.

[00:03:21] Speaker 03:
But the Second Circuit has expressly indicated that you don't have to prove every element and that no single factor is determinative.

[00:03:28] Speaker 03:
The court, on the other hand, felt that this was the most important factor and that this was problematic or fatal to our case, but the Second Circuit has respectfully looked at it otherwise.

[00:03:39] Speaker 03:
In addition, the court had made other legal errors that disregarded or may have overlooked numerous

[00:03:47] Speaker 03:
cases by the Second Circuit on these issues.

[00:03:50] Speaker 03:
For example, with respect to media coverage, the court held that Bob Carr must be identified as the source of the vehicle.

[00:03:57] Speaker 03:
But with respect, the Second Circuit is held otherwise.

[00:04:00] Speaker 03:
In the 20th century versus San Marc Stardust case, the court held that that's not the case, that even an anonymous producer can show secondary meaning.

[00:04:11] Speaker 03:
The court also held that Bob Carr has to show third-party copying.

[00:04:15] Speaker 03:
The Second Circuit has not so held, on the contrary, in 20th century where the court held that copying, meaning copying by the accused defendant, is persuasive, if not conclusive, evidence of secondary meaning without requiring that there be copying by a third party.

[00:04:32] Speaker 03:
The court also held that the advertising that we proved, that we showed, was only relevant if we had the dollars and cents, if we had the exact amounts that were spent in each of those advertisements.

[00:04:45] Speaker 03:
But we took the position that, respectfully, that advertising has a purpose.

[00:04:50] Speaker 03:
It refers to secondary meaning.

[00:04:51] Speaker 03:
And it's to show the impact of the company activities on brand awareness.

[00:04:55] Speaker 03:
And that cannot necessarily be measured in dollars and cents alone.

[00:04:59] Speaker 03:
There are many, especially nowadays, forms of advertising and promotional activities that may even be free, such as Twitter and Facebook and so forth, that can have an enormous impact on brand awareness and on knowledge of a particular company or an issue.

[00:05:13] Speaker 03:
And we see that every day.

[00:05:14] Speaker 03:
That may not cost anything.

[00:05:16] Speaker 03:
It may be free, but yet it's a fact.

[00:05:18] Speaker 03:
It's a factor for a jury to consider in determining brand awareness, secondary meaning.

[00:05:23] Speaker 03:
And likewise, another error was the court's holding that exclusivity can't be shown in a short period of time.

[00:05:29] Speaker 03:
But as I had indicated in the Munchkin case, this court said that there are no hard and fast rules.

[00:05:33] Speaker 03:
And less than two years in that case was held to be sufficient.

[00:05:37] Speaker 03:
The court also, with respect to the trade dress claim, made numerous factual determinations.

[00:05:43] Speaker 03:
Secondary meaning is a heavily factual matter.

[00:05:46] Speaker 03:
It's something that requires a large number of, as we said, six factors have to be determined, advertising impact, brand awareness.

[00:05:55] Speaker 03:
It's what would be perceived by the public.

[00:05:58] Speaker 03:
And the court, unfortunately, took inferences against Bobcor.

[00:06:02] Speaker 03:
But really, since this is summary judgment, it's something that should have had inferences taken in favor of Bobcor, or at least given the jury the opportunity to make their decisions.

[00:06:13] Speaker 03:
Even in, for example, the survey issue, Ardbark's own expert agreed with Bob Carr that surveys are not to be owned and all.

[00:06:25] Speaker 03:
Mr. Hampton, who's a former commissioner of trademarks, said he could not recall a single case in which he had ever used a survey.

[00:06:31] Speaker 03:
And he said, quote, they're expensive.

[00:06:34] Speaker 03:
And even though courts claim they want them, they seem like they knocked them down.

[00:06:38] Speaker 03:
I'm sorry.

[00:06:38] Speaker 03:
Excuse me.

[00:06:39] Speaker 03:
They knocked them out as much as they accept them.

[00:06:41] Speaker 03:
And, you know, a quarter million dollars to have your survey knocked out is not a way to ingratiate yourself with your client.

[00:06:48] Speaker 03:
All in all, on the secondary meeting issue, the court made numerous inferences against Balfour, even though we had video testimonials by T-Mobile's chief executive officer.

[00:06:58] Speaker 05:
Mr. Cohen, this is Judge Crandall.

[00:07:01] Speaker 05:
Can I just ask you about one of the, I guess, legal points that I think you made about

[00:07:08] Speaker 05:
the time as of which secondary meaning needs to be measured.

[00:07:15] Speaker 05:
What authority specifically and what's the rationale for any such authority that says if a competitor comes into the market at a time when the alleged trade dress owner does not

[00:07:34] Speaker 05:
has secondary meaning, so no relevant market recognition that something that looks like this belongs to this particular source.

[00:07:45] Speaker 05:
What authority says that even if the incumbent is outspending over the next several years the insurgent and acquires secondary meaning later, at that point the insurgent is

[00:08:04] Speaker 05:
infringing even if it wouldn't be infringing when it came in.

[00:08:11] Speaker 05:
That's not a very intuitive legal result, and I wonder where it comes from.

[00:08:19] Speaker 03:
Thank you, Your Honor.

[00:08:20] Speaker 03:
As far as I can tell, based upon our briefs and the other side's briefs, I don't believe that there's any case law directly on point.

[00:08:26] Speaker 03:
I think it may be a matter of first impression because neither side could find a case that addressed this particular question.

[00:08:32] Speaker 03:
But I think in terms of the rationale, I can explain what our rationale, our reasoning is.

[00:08:37] Speaker 03:
First, our reasoning is based on lucky brands in which the Supreme Court indicated that marketplace realities change from year to year.

[00:08:45] Speaker 03:
And something that proves a first cause of action a year later, it can be very different in terms of a second cause of action.

[00:08:52] Speaker 03:
And we maintain that we have a separate cause of action at each infringement because each one is a separate product.

[00:08:57] Speaker 03:
We could have accused one product and not the other.

[00:09:00] Speaker 03:
of the multiple products that are at issue here.

[00:09:03] Speaker 03:
The case law talks about before the infringement began, such as the Braun case.

[00:09:11] Speaker 03:
And we maintain that there are multiple infringements.

[00:09:13] Speaker 03:
And in fact, they're punctuated infringements.

[00:09:16] Speaker 03:
And what I mean by that is that a hard bark and likewise a party can start infringing and then can stop.

[00:09:23] Speaker 03:
And then months later or a year later, start a new infringement.

[00:09:27] Speaker 03:
And I mean, had we known that the court was going to take this position,

[00:09:30] Speaker 03:
We could have, say, only choose the second infringement or the third infringement or the last infringement.

[00:09:36] Speaker 03:
And then it would be accrued or our proof would have to be accrued as of that last infringement.

[00:09:41] Speaker 03:
And to give an example of what I mean in terms of, because you asked about the intuitive aspect to it.

[00:09:46] Speaker 03:
Let's say, for example, Hardbar came out with an infringement.

[00:09:48] Speaker 03:
And this is a hypothetical.

[00:09:49] Speaker 03:
Let's say Hardbar came out with an accused infringement in 2008, a year after the Bob Carr had been in the market.

[00:09:58] Speaker 03:
And then it came out with another infringement.

[00:10:00] Speaker 03:
in 2015 or 2016.

[00:10:03] Speaker 03:
And we accused both, not knowing that this court was going to take such a position.

[00:10:09] Speaker 03:
The fact that Aardvark may take the position that there's no secondary meaning for the first infringement, if years go by and then there's a new infringement, intuitively, Bob Carr should be able to allege that the new infringement, at least, is a violation of the trade dress rights, even if the first infringement did not.

[00:10:30] Speaker 03:
And the problem with this from the perspective of, you know, from the litigation perspective is let's assume that there are multiple parties, for example.

[00:10:38] Speaker 02:
So you're using your rebuttal time, which you're free to do, but I just wanted to make you aware of it.

[00:10:44] Speaker 03:
In that case, I reserve the remaining time for rebuttal, Your Honor.

[00:10:47] Speaker 03:
Thank you.

[00:10:48] Speaker 02:
Sure.

[00:10:49] Speaker 02:
Okay.

[00:10:49] Speaker 02:
Let's hear from Mr. Weissman.

[00:10:54] Speaker 01:
Thank you very much.

[00:10:55] Speaker 01:
This is Peter Weissman on behalf of Aardvark.

[00:10:57] Speaker 01:
May I refuse the court?

[00:10:58] Speaker 01:
Can you hear me okay?

[00:11:01] Speaker 02:
Yes.

[00:11:02] Speaker 01:
Thank you.

[00:11:03] Speaker 01:
Just to pick up on the question that Judge Toronto was asking, there's absolutely no authority for this multiple infringement proposition.

[00:11:12] Speaker 01:
It's completely contrived by Bob Carr.

[00:11:15] Speaker 05:
Is there authority the other way?

[00:11:19] Speaker 01:
I think we cited some authority in our case.

[00:11:22] Speaker 01:
But I mean, if you think about it, there's really nothing special.

[00:11:25] Speaker 05:
Well, I can easily see policy arguments on both sides.

[00:11:28] Speaker 05:
And I think Mr. Cohen

[00:11:30] Speaker 05:
was articulating a kind of a policy idea on his side of that.

[00:11:37] Speaker 01:
Well, I don't know that this has to do with policy.

[00:11:40] Speaker 01:
Nobody has ever raised this type of a thing.

[00:11:44] Speaker 01:
Once Aardvark was in the marketplace, it was continuously in the marketplace.

[00:11:48] Speaker 01:
There was no suggestion that they stopped and started.

[00:11:50] Speaker 01:
I don't understand this multiple infringement.

[00:11:55] Speaker 01:
It could apply to every single case that is before you.

[00:11:59] Speaker 01:
There's nothing special about this case that would distinguish it to justify the concept of multiple infringement.

[00:12:07] Speaker 01:
Every single case you see about trade dress or trademark infringement, the accused defendant is in the marketplace and continues.

[00:12:18] Speaker 01:
Since Aardvark entered the marketplace, Bob Carr has not had exclusivity.

[00:12:24] Speaker 01:
It's as simple as that.

[00:12:25] Speaker 01:
This is not a case of first impression like

[00:12:28] Speaker 05:
uh... mr cohen said that it's a bit too late and i think mister cohen began uh... his point about uh... that particular issue saying uh... that uh... in your summary judgment motion you never asserted that secondary meaning had to be established up uh... at the time of art bark entry whether that was late two thousand eight or march two thousand nine

[00:12:54] Speaker 05:
Is that right?

[00:12:56] Speaker 05:
In your summary judgment motion, you didn't identify a timing requirement as existing and as a requirement as to which the other side lacked evidence.

[00:13:11] Speaker 01:
Thank you, yes.

[00:13:12] Speaker 01:
So, I mean, that's such a basic proposition.

[00:13:17] Speaker 05:
The concept of... Even though you haven't identified in this oral argument a single authority for it.

[00:13:25] Speaker 01:
The authority is the first and right is first in time.

[00:13:29] Speaker 01:
That which comes before invalidates that which comes after infringes.

[00:13:34] Speaker 01:
I mean, that's just the basic concept to all patents, trademarks, and copyrights.

[00:13:39] Speaker 01:
I mean, to say that you don't have to have a trademark before you actually sue somebody for trademark infringement, it's a little bit far-fetched.

[00:13:54] Speaker 01:
uh... to say i don't have to have a patent before i see someone on patent infringement and that's just the basic concept but i don't give any uh... credence to that at all mister could so i i would say that uh... you know again there's nothing unique about this case that would justify this multiple infringement and as far as uh... the wrong day code as we pointed out in our brief

[00:14:21] Speaker 01:
This is somewhat of a so what case.

[00:14:25] Speaker 01:
Bob Carr has pointed to nothing new about that date that would come into effect and change the ruling in this case.

[00:14:36] Speaker 05:
Has Bob Carr identified, suppose it were correct that putting aside the difference between 2008 and early 2009, but this suit covers, you know,

[00:14:51] Speaker 05:
a number of years after that.

[00:14:53] Speaker 05:
Suppose it were, there were a difference, suppose later events could be actionable under a secondary meaning theory even if the earlier ones didn't.

[00:15:07] Speaker 05:
Has Bobcar identified or pointed to evidence that would suggest the possibility of a different result and relevant to that?

[00:15:18] Speaker 05:
Did it have an opportunity to do that or are we talking about something

[00:15:21] Speaker 01:
that he that it could have um... shown to be a prejudicial uh... uh... did prejudicial in terms of the timing but has not been well uh... i would say if anything uh... art bar probably built up secondary meaning before bob carter i mean uh... did bob carter continue with its vehicle program sure but there's nothing in the record that would lead me to think that

[00:15:51] Speaker 01:
uh... that it is that it contains secondary meaning in fact it's also these products these are vehicles that go to big customers like the mobile in the light these are hundred thousand dollar uh... programs that they do they they do this for a whole month sometimes several months sometimes a year so uh... the the customers are sophisticated note they know who these product but where these products are coming from and they often be five by five comparisons which was in the record so uh...

[00:16:22] Speaker 01:
It's clear that the two programs were different.

[00:16:28] Speaker 01:
The vehicles offered by Bob Carr and those by Aardvark.

[00:16:32] Speaker 01:
Just one other thing I would like to point out is that Bob Carr has never pointed to any nexus, no connection between any of the six factors and their trade dress.

[00:16:43] Speaker 01:
They don't even put the trade dress definition into their brief.

[00:16:47] Speaker 01:
There's nothing to understand why any of these six factors

[00:16:53] Speaker 01:
would are relevant to this particular vehicle or the trade dress in particular.

[00:17:01] Speaker 01:
I mean, they had... Council, this is Judge Moore.

[00:17:04] Speaker 02:
If you don't mind, I'd like to ask you to address the standing question with regard to the patent infringement claim.

[00:17:10] Speaker 02:
And my question in particular to you is, was the district court right in determining no statutory standing in this case

[00:17:22] Speaker 02:
based on the non-pro-tunk agreement when you can otherwise cure a lack of statutory standing through just adding the patent holder.

[00:17:34] Speaker 01:
Thank you.

[00:17:37] Speaker 01:
I'm not sure I fully understand your question, but I'll say this.

[00:17:40] Speaker 01:
So the issue here is very clear cut.

[00:17:43] Speaker 01:
Either you have standing on the day that you sue or you don't.

[00:17:48] Speaker 01:
And you cannot correct that retroactively by an assignment.

[00:17:53] Speaker 01:
And that's the ENSO case that we cite in our brief.

[00:17:57] Speaker 02:
Well, you can cure a defect, at least in the pleading, right, by adding the patentee.

[00:18:02] Speaker 02:
An exclusive licensee can bring a suit.

[00:18:05] Speaker 02:
And if it's determined the exclusive licensee doesn't have statutory standing at the time the complaint was filed, they can cure that defect by adding the patentee in.

[00:18:14] Speaker 02:
Is that right?

[00:18:17] Speaker 01:
uh... well that's not the issue here of course but i'd i'd believe that it's probably correct but but i think that have to do with uh... and actually the situation here was that the judge did try to let bob car correct this they they gave the bob car an opportunity to join the inventors uh... to this suit and bob car denied that they've been judged gave ten days and bob car said we need another ten days in the judge gave him that

[00:18:45] Speaker 02:
And they failed to do it, and they... And, Council, just out of curiosity, the dismissal of the patent infringement claim was without prejudice, is that right?

[00:18:53] Speaker 02:
Correct.

[00:18:55] Speaker 02:
So they could conceivably bring the claim again tomorrow just with the inventors added into the complaint, and then it would meet the standing requirement, is that right?

[00:19:07] Speaker 01:
Correct, assuming, if you're assuming that the assignment documents are good, yes.

[00:19:13] Speaker 02:
Well, actually, if the NUNPRO TUNC agreement is good, even if it's not effective retroactively, it could be effective now.

[00:19:20] Speaker 02:
So could they conceivably now re-bring the patent infringement claim all by themselves without even adding in the names of the individual inventors?

[00:19:31] Speaker 02:
Because you're absolutely right that ENSO says assignments can't work retroactively, but

[00:19:35] Speaker 02:
you know, this is now prospectively, because there's been this non-proton agreement that's been entered.

[00:19:41] Speaker 02:
So could they, they now have a written assignment, could they bring the suit by themselves tomorrow and meet the standing requirement?

[00:19:51] Speaker 01:
I mean, that wasn't the situation before us, but yeah, I mean, once they have an assignment, they can prospectively bring an action.

[00:19:59] Speaker 02:
Okay.

[00:19:59] Speaker 02:
Thank you.

[00:20:01] Speaker 01:
I was waiting for you to ask the next question, which is,

[00:20:05] Speaker 01:
You know, what's the difference?

[00:20:07] Speaker 01:
And the difference here is, you know, if you don't have standing on day one, it becomes a he said, she said.

[00:20:13] Speaker 01:
I mean, people come out of the woodwork.

[00:20:14] Speaker 01:
They said, oh, I own this.

[00:20:16] Speaker 01:
You own this.

[00:20:16] Speaker 01:
Who knows?

[00:20:17] Speaker 01:
Inventors die.

[00:20:18] Speaker 01:
They go missing.

[00:20:19] Speaker 01:
People get divorced.

[00:20:20] Speaker 02:
I had a situation where... Well, in fact, in this case, didn't one of the depositions, I think it was, say, well, I think we had an assignment.

[00:20:27] Speaker 02:
We must have had an assignment.

[00:20:29] Speaker 02:
I think there was an assignment.

[00:20:30] Speaker 02:
Sure, there had to have been an assignment.

[00:20:31] Speaker 02:
Wasn't that kind of a little bit of what happened in this case, in fact?

[00:20:35] Speaker 01:
yet uh... that that thirty b six witness was not well prepared and he certainly was not aware of the any any written this written document and um... i think your perception was correct that he was kinda wobbling on one what what it meant so like i said i mean until until a written assignment actually done i mean if i i i think that this is what have requirement for written assignment and the burden on bob car was minimal

[00:21:05] Speaker 01:
There is a one or two page document.

[00:21:07] Speaker 01:
It's a form template, easy to complete, and I'm getting a little static.

[00:21:13] Speaker 01:
Is that bothering anyone?

[00:21:17] Speaker 02:
Yeah, we can hear you.

[00:21:18] Speaker 02:
The static is pretty bad.

[00:21:19] Speaker 02:
I'm not sure if you could take us off speaker or something.

[00:21:22] Speaker 02:
If that might help.

[00:21:22] Speaker 01:
I just did.

[00:21:23] Speaker 01:
I just took out my handset, but I still hear it.

[00:21:26] Speaker 02:
Yeah, us too.

[00:21:27] Speaker 02:
But I think that I can tolerate it.

[00:21:29] Speaker 02:
Go ahead.

[00:21:31] Speaker 01:
OK, thank you.

[00:21:34] Speaker 01:
So this law is not much of a burden.

[00:21:37] Speaker 01:
I mean, it takes very little time to do an assignment.

[00:21:40] Speaker 01:
It's a form document and most attorneys do that.

[00:21:44] Speaker 01:
You have to also submit a declaration in the case.

[00:21:47] Speaker 01:
So most attorneys will send a declaration and assignment at the same time and you just have them signed and you just record them with the patent office and you're done and that's it.

[00:21:55] Speaker 01:
I think the burden on people who file assignments is relatively low.

[00:22:00] Speaker 01:
And the benefit is very, very great.

[00:22:02] Speaker 01:
It gives clear title and avoids, you know, multiple people from coming after you.

[00:22:10] Speaker 01:
I'm going to switch over, if I may, to the issue with the New York Unfair Competition Client.

[00:22:17] Speaker 01:
In Bob Carr's reply brief, they had asserted that the court applied the wrong law.

[00:22:25] Speaker 01:
And what happened in that, the court's decision was that

[00:22:29] Speaker 01:
because Bob Carr's trade dress is not protectable because there was no secondary meaning, the court said that the state law unfair competition claims were also dismissed as well.

[00:22:40] Speaker 01:
And so Bob Carr in its reply brief said that the court applied the wrong law because secondary meaning isn't needed.

[00:22:48] Speaker 01:
But that's completely wrong.

[00:22:49] Speaker 01:
It cites to this case the ITC decision

[00:22:56] Speaker 01:
which was the New York Court of Appeals, and if you look at the appellate history for that, so the Court of Appeals case did recite a test, and you'll notice that the test has a lot of the same things as required for secondary meaning, and if you look at the appellate history, the question before the Court of Appeals was certified by the Second Circuit.

[00:23:22] Speaker 01:
When it came back to the Second Circuit, they actually said,

[00:23:25] Speaker 01:
We discern, and I'll quote here, we discern no material difference between the standard established by these factors, and here they mean the six secondary meaning factors, and those enumerated by the New York Court of Appeals.

[00:23:40] Speaker 01:
So it's clear that secondary meaning is required, and Judge Etkin was correct in his decision there.

[00:23:51] Speaker 01:
It's also noted that

[00:23:54] Speaker 01:
I believe Bob Carr in its reply brief to the district court, it failed to argue anything other than secondary meaning and in fact its entire position consisted of five lines of argument and that's at Appendix 2600.

[00:24:18] Speaker 01:
So Bob Carr never raised this in the lower court either.

[00:24:22] Speaker 01:
As to

[00:24:25] Speaker 01:
Daubert, there was one thing I did want to address here.

[00:24:31] Speaker 01:
I wanted to point out that with respect to the Daubert motion, the standard is very high here.

[00:24:41] Speaker 01:
It's an abuse of discretion.

[00:24:42] Speaker 01:
Bob Carr never argues about an abuse of discretion.

[00:24:46] Speaker 01:
Their argument was that the testimony by the expert would have been probative.

[00:24:51] Speaker 01:
So I think at the outset, its motion fails just on that reason alone.

[00:24:58] Speaker 02:
Okay.

[00:24:59] Speaker 02:
Thank you, Council.

[00:25:00] Speaker 02:
Let's have the rebuttal time by Mr. Cohen.

[00:25:04] Speaker 02:
Please proceed, Mr. Cohen.

[00:25:07] Speaker 03:
Thank you, Your Honor.

[00:25:08] Speaker 03:
So I'd like to try to go to each of those quickly.

[00:25:12] Speaker 03:
The first is with respect to the start and stop of the infringement.

[00:25:16] Speaker 03:
Aardvark did start and stop infringement.

[00:25:18] Speaker 03:
At the appendix of A2338,

[00:25:21] Speaker 03:
It lists each of the campaigns that are accused.

[00:25:24] Speaker 03:
It lists the start date of that campaign and the end date of that campaign.

[00:25:27] Speaker 03:
Each campaign was started on a particular date, ended at a particular date, and then that campaign was over.

[00:25:32] Speaker 03:
And then there may have been a later infringement that was accused, but it was a different product.

[00:25:37] Speaker 03:
And the fact that it's a different product is admitted by Aardvark itself.

[00:25:42] Speaker 03:
Aardvark stated in Appendix 1085, paragraph 43,

[00:25:47] Speaker 03:
that, quote, the Aardvark vehicles, while branded under the same name, are generally different.

[00:25:52] Speaker 03:
And it mentions at that same site that they're customized.

[00:25:55] Speaker 03:
Likewise, the CEOs said the same thing at Appendix 1948, page 228, lines 3 to 25.

[00:26:02] Speaker 03:
So it's not accurate that this is just one infringement.

[00:26:05] Speaker 03:
There were multiple vehicles which Aardvark itself were all different.

[00:26:11] Speaker 03:
Next, I'd like to, and I can go back to this if you'd like, but I just want to try to, with my rebuttal time,

[00:26:16] Speaker 03:
I'd like to address the standing issue.

[00:26:18] Speaker 03:
Well, just lastly on that, I think it is corrected.

[00:26:22] Speaker 03:
Bob Carr never had the opportunity to show different evidence on this at the lower court.

[00:26:26] Speaker 03:
And this is, he claimed, Mr. Wyston claimed that, you know, it's basic.

[00:26:32] Speaker 03:
You have to have a trademark.

[00:26:33] Speaker 03:
But this is a question of different accused marks.

[00:26:37] Speaker 03:
And we claim we had rights.

[00:26:40] Speaker 03:
But for each mark, we claim the analysis has to be taken out of itself.

[00:26:44] Speaker 03:
For example, let's assume that we had sued Aardvark and T-Mobile, and T-Mobile only started infringing in 2015.

[00:26:53] Speaker 03:
Under their analysis, under their position, it's a different analysis in the same case for T-Mobile and for Aardvark.

[00:27:01] Speaker 03:
For T-Mobile, the question is, because they're only accused of infringing in 2015, whether there's secondary meaning as of 2015.

[00:27:08] Speaker 03:
According to their position, for Babkar,

[00:27:11] Speaker 03:
infringement has to be validity and trade dress secondary meaning has to be determined as of 2009.

[00:27:17] Speaker 03:
The same case and the same vehicle, and we're subjecting that vehicle that was introduced in 2015 for T-Mobile to two different standards.

[00:27:26] Speaker 03:
And we just submit that that's not logical.

[00:27:28] Speaker 03:
It doesn't make sense.

[00:27:30] Speaker 03:
It would not be a good law.

[00:27:31] Speaker 03:
With respect to the standing issue, if I may turn to that,

[00:27:36] Speaker 03:
Um, the, um, the inventors in this case executed a non-protonch and they can also execute.

[00:27:44] Speaker 04:
Excuse me.

[00:27:45] Speaker 04:
This is judge Shaw here.

[00:27:47] Speaker 04:
I have one question.

[00:27:48] Speaker 04:
Um, why didn't you, your client choose to take up the judge's invitation via the dismissal without prejudice and just refile, uh, the, uh, the patent law claims.

[00:28:05] Speaker 03:
Yes, your honor.

[00:28:06] Speaker 03:
The client executed an assignment which transferred all of their rights to BobCorp.

[00:28:16] Speaker 03:
So to the extent that the inventors had any rights, they executed not only a non-protunque, they executed a new assignment that transferred all of their rights to BobCorp.

[00:28:25] Speaker 03:
So as a result... Right.

[00:28:27] Speaker 04:
Excuse me.

[00:28:28] Speaker 04:
Time is fleeting.

[00:28:29] Speaker 04:
No, I understand what you're saying, but in response or picking up on the colloquy that

[00:28:35] Speaker 04:
the presiding judge was having with Mr. Weisman, why couldn't Bob Carr or why didn't Bob Carr just file in view of the new assignment the patent law claim?

[00:28:52] Speaker 03:
In other words, with the inventors listed?

[00:28:55] Speaker 04:
No, I mean, they've assigned the rights to Bob Carr

[00:29:00] Speaker 04:
in what was a knock-pro-tunk assignment, but as the presiding judge said is now prospective, couldn't Babkar just go in now and refile on the design patent claims?

[00:29:15] Speaker 03:
It could.

[00:29:15] Speaker 03:
The problem is that there's potential issues of statute of limitations because of the passage of time.

[00:29:21] Speaker 03:
And in addition, to the extent that this court adjudicated several decisions afterwards, which we weren't aware of because they came out afterwards,

[00:29:28] Speaker 03:
such as the Lone Star case and such as the Schwedeman case.

[00:29:33] Speaker 03:
Our position is a little bit different now than the position that it was then because of the fact that those cases had not come out and also the court had not the opportunity to address them.

[00:29:42] Speaker 03:
Bobcarr could have potentially refiled.

[00:29:45] Speaker 03:
It did, it was, it's prep was to have Bobcarr in the suit and its position was that once the event, if the inventors joined would be enough, the inventors transferring all those rights to Bobcarr should also be enough.

[00:29:55] Speaker 03:
And if everyone agreed, there was no dispute that Babcock owned all the rights.

[00:30:00] Speaker 03:
And the president had, in fact, remembered that they had both signed the assignment.

[00:30:05] Speaker 03:
Even though the other inventor who has multiple companies was hazier, the inventor, Mr. Benjamin Cohen, has only one company, Babcock, and he remembered distinctly when they both executed the assignment.

[00:30:15] Speaker 03:
So we felt that the court erred on that issue.

[00:30:19] Speaker 03:
We didn't want to

[00:30:20] Speaker 03:
If possible, have the inventors in the suit individually with them to be sued and counter sued individually.

[00:30:26] Speaker 03:
Our position was we felt that it was clear from all the testimonies that everyone agreed that only Bob Carr owned the rights.

[00:30:32] Speaker 03:
It would be enough, for example, on the Lone Star without all substantial rights, but there's no dispute that the only one who had the rights was Bob Carr.

[00:30:40] Speaker 03:
There was no risk of multiple inconsistent suits, which we think is the important principle of standing.

[00:30:46] Speaker 03:
Um, and there's no dispute there was an injury which can fairly be traced to the defendant and likely were addressed by favorable judgment, which is also the standard in Lone Star.

[00:30:55] Speaker 03:
Um, based upon the fact that there's an injury and no possibility of multiple inconsistent suits, we believe it would be inappropriate to create an additional burden that somebody else would have to be part of the suit or there would have to be some additional showing when the question here is whether Babkor was injured or was.

[00:31:12] Speaker 03:
and whether there's a possibility of multiple inconsistent suits, it wasn't.

[00:31:18] Speaker 02:
Okay, thank you, Mr. Cohen.

[00:31:19] Speaker 02:
I thank both counsels.

[00:31:20] Speaker 02:
The case is taken under submission.

[00:31:22] Speaker 02:
The Honorable Court is adjourned until tomorrow morning at 10 a.m.