[00:00:00] Speaker 04:
That leads to our final case for this morning, 24-2191, Toprand versus Cozy Comfort.

[00:00:07] Speaker 04:
Mr. Castanhas.

[00:00:09] Speaker 02:
Thank you.

[00:00:10] Speaker 02:
Good morning.

[00:00:11] Speaker 02:
It takes still your honors and may it please the court.

[00:00:14] Speaker 02:
The multiple Rule 28J letters that Cozy Comfort has submitted over the last several days serve to demonstrate the importance of the principal issue in this case, the scope of Cozy Comfort's design patent claim.

[00:00:28] Speaker 02:
I intend to focus my attention today on three issues.

[00:00:31] Speaker 02:
One, JMOL of no design patent infringement.

[00:00:37] Speaker 02:
Two, and that's, by the way, because of the legally limited scope of that claim.

[00:00:42] Speaker 02:
Two, JMOL of no trademark infringement.

[00:00:45] Speaker 02:
And three, the district court's refusal to grant a new trial in the face of this court's LKQ decision, which made the obvious misinstruction of this case prejudicially erroneous.

[00:00:57] Speaker 02:
Let me start with JMOL of no design patent infringement.

[00:01:01] Speaker 02:
Cozy Comfort got the 788 patent by overcoming an anticipation rejection in convincing the examiner that, and I quote, small differences like the size and location of its marsupial pockets, those are the pockets in the front of the sweatshirt, like a kangaroo, and the backward angle of its bottom hem were going to be important to the ordinary observer.

[00:01:26] Speaker 02:
It had to do this because oversized hoodie sweatshirts were ubiquitous.

[00:01:32] Speaker 02:
The white 900 patent was just one of many examples that existed in the art.

[00:01:37] Speaker 02:
By making these narrowing representations, Cozy Comfort traversed the anticipation rejection and also

[00:01:44] Speaker 02:
avoided any obviousness consideration of its design.

[00:01:48] Speaker 02:
The court should keep that fact in mind when it considers that the 788 patent was also never tested for obviousness under the current LKQ standard.

[00:01:57] Speaker 02:
But by the time of trial, Cozy Comfort was telling an entirely different story.

[00:02:02] Speaker 02:
It was telling the story through its experts that the shopper, and I quote here, the shopper would not go into so much great detail in figuring out features and things like that.

[00:02:11] Speaker 02:
They would actually just pull up the product online and click and buy.

[00:02:15] Speaker 02:
That's Mr. Crumley's testimony at Appendix 24583.

[00:02:18] Speaker 02:
And what did Cozy Comfort get for this change in position, for this manipulation of its so-called nose of wax?

[00:02:28] Speaker 02:
It got an enormous judgment against top brand on this theory despite the fact

[00:02:32] Speaker 02:
But the accused hoodies manufactured by our client lack all of the things.

[00:02:37] Speaker 02:
The narrow and high pocket.

[00:02:39] Speaker 03:
Assume that I agree with you for the sake of argument on the claim construction position and that the district court should have adopted the words that you wanted.

[00:02:49] Speaker 03:
Why is there not a fact dispute at that point and I should remand for a trial at which a new jury would be read or long, but accurate, I think probably a claim construction.

[00:03:02] Speaker 02:
The simple answer, Judge Stark, is that they've never challenged, and we've put them to that challenge on this appeal.

[00:03:09] Speaker 03:
They've conceded they cannot show infringement under your construction.

[00:03:15] Speaker 02:
They have never shown any evidence that under our construction, and in fact, Judge Stark, let's take a look at what those representations were, and we can show you why that's the case.

[00:03:27] Speaker 02:
The pocket size representation.

[00:03:29] Speaker 02:
This is an appendix 15108.

[00:03:32] Speaker 02:
And by the way, these are all in our verbal construction that was originally offered at 5274 of the appendix.

[00:03:40] Speaker 03:
So you're telling us 15108?

[00:03:42] Speaker 02:
15108.

[00:03:43] Speaker 02:
This is the file history, then.

[00:03:47] Speaker 02:
This is the what?

[00:03:48] Speaker 02:
The file history.

[00:03:51] Speaker 02:
So 15108, the applicant says, the pocket in the inventive design is approximately one third of the width of the torso.

[00:04:04] Speaker 02:
Okay, start there.

[00:04:06] Speaker 02:
The evidence at trial, undisputed, is that the pockets in the accused designs of our client span approximately two thirds.

[00:04:16] Speaker 02:
the width of the torso.

[00:04:23] Speaker 02:
No, if you look at this court's decisions in cases like Elmer, in cases like

[00:04:38] Speaker 02:
There are two others that we've cited in our brief as well that also either grant or affirm judgment as a matter of law on appeal.

[00:04:45] Speaker 02:
They're cited in tandem with our Elmer decision.

[00:04:47] Speaker 02:
They're out of the federal appendix.

[00:04:49] Speaker 02:
But Elmer is presidential.

[00:04:51] Speaker 02:
This court does that all the time.

[00:04:53] Speaker 02:
It looks itself and says, in ordinary, no reasonable jury, no reasonable finder of fact could find this.

[00:05:00] Speaker 02:
And let's go on to their second representation, which is the location of the pockets.

[00:05:06] Speaker 02:
They say, in the enlarged overgarment, this is at 15109 Judrina, in the enlarged overgarment, by contrast, the bottom of the arm side, that's a term I learned for this case, it's an arm hole, is actually below the top of the marsupial pocket.

[00:05:23] Speaker 02:
Well, you can look at the illustrations in the appendix and see that in all but one,

[00:05:33] Speaker 02:
of our designs, they're only one of our limited designs.

[00:05:36] Speaker 02:
The pocket is below, so it doesn't meet that even.

[00:05:42] Speaker 02:
Then finally, and this is really I think the easiest way, look at 15110, the angle of the bottom hem is different.

[00:05:51] Speaker 02:
What do they say about that?

[00:05:53] Speaker 02:
In the inventive design, this couldn't have been clearer if they'd written in their specification in a utility patent, my invention is.

[00:06:01] Speaker 02:
In the inventive design, the bottom hem slopes downward.

[00:06:05] Speaker 02:
No dispute whatsoever.

[00:06:06] Speaker 04:
So what you're saying is that if any of these features is different in the accused's design, there's no infringement, just that one taking one feature at a time?

[00:06:17] Speaker 02:
I don't have to do that here.

[00:06:19] Speaker 02:
And I don't think that's even necessary, because this is where I'm going to wind up here, which is also at 15110.

[00:06:25] Speaker 02:
This is what the applicant said.

[00:06:29] Speaker 02:
There are, in fact, significant differences that an ordinary observer would see, appreciate, and rely on to distinguish the two designs.

[00:06:35] Speaker 02:
These differences are not trivial.

[00:06:37] Speaker 02:
The slope of the bottom hem is significant.

[00:06:39] Speaker 02:
The proportions of the arm size to the marsupial products are markedly different.

[00:06:43] Speaker 02:
And the many differences in the marsupial pockets are prominent because of their frontal location on the torso of each design.

[00:06:49] Speaker 02:
That's how they summed it up.

[00:06:50] Speaker 02:
These three things were what mattered.

[00:06:52] Speaker 02:
And all three of those things are absent from our product.

[00:06:54] Speaker 04:
So we don't have to do the one by one.

[00:06:57] Speaker 04:
prevents an ordinary observer.

[00:06:59] Speaker 02:
Absolutely.

[00:07:00] Speaker 02:
Absolutely.

[00:07:02] Speaker 02:
And the simple fact is, as I said, that no reasonable jury could conclude that these accused sweatshirts, they lack all of these features.

[00:07:11] Speaker 02:
They could not conclude that there was infringement.

[00:07:13] Speaker 02:
That's why judgment as a matter of law should be granted here.

[00:07:17] Speaker 02:
I think, by the way, we ventilated exhaustively through letters, their waiver,

[00:07:22] Speaker 02:
Argument unless the court has questions on that one move to trademark because I think it's important to walk through what they say is the sufficient substantial evidence of trademark infringement Okay My friends say that four pieces of evidence demonstrate Substantial evidence to support the trademark for it And they say this at the bottom of page 40 of the red brief

[00:07:49] Speaker 02:
The first piece of evidence they cite is in Appendix 2492.

[00:07:52] Speaker 02:
That's the web page that has the pull-down menu that says, comfy.

[00:07:57] Speaker 02:
We don't know what that goes to.

[00:07:59] Speaker 02:
There's no evidence of what happened once you clicked on that.

[00:08:02] Speaker 02:
That's all the evidence.

[00:08:04] Speaker 04:
Well, they say it took you to an Amazon web page.

[00:08:07] Speaker 02:
There's no evidence of that.

[00:08:08] Speaker 02:
They say that.

[00:08:10] Speaker 04:
I'm not sure.

[00:08:11] Speaker 04:
Well, let's put that to the side.

[00:08:14] Speaker 02:
OK, I'm sorry.

[00:08:15] Speaker 04:
There is some testimony to that effect, I thought.

[00:08:23] Speaker 02:
There is some testimony from Mr. McGann that those menu items were to take you to an Amazon web page.

[00:08:28] Speaker 02:
What Amazon web page?

[00:08:29] Speaker 02:
We don't know.

[00:08:30] Speaker 02:
We don't know.

[00:08:31] Speaker 02:
They didn't show us what that web page was.

[00:08:33] Speaker 02:
They just used Mr. McGann's testimony, which by the way, was elicited on direct just to explain why that was there.

[00:08:39] Speaker 01:
Does it matter that we know which Amazon web page?

[00:08:42] Speaker 02:
No, I'm just trying to explain to you how thin the evidence is here.

[00:08:46] Speaker 02:
Because then, their second piece of evidence is Mr. Nguyen's testimony explaining the pull-down menu.

[00:08:51] Speaker 02:
He says it means it's comfy, it's comfortable, it's snuggy.

[00:08:56] Speaker 02:
The third piece of evidence, and this is where they really lean, and that's on an Amazon webpage that they've printed out.

[00:09:04] Speaker 02:
2469 to 2477.

[00:09:06] Speaker 02:
Let me take you to 2477, because they say that there are customer questions and answers at 2477 that show likely confusion.

[00:09:16] Speaker 02:
Now first I want to point, should I wait until you find that page?

[00:09:22] Speaker 02:
Okay.

[00:09:23] Speaker 02:
At 2477, I want to point out that this is an Amazon Trinia webpage.

[00:09:29] Speaker 02:
That's a different product line than the Catalonia product line, Judge Raina, that was the subject of the pull-down menu.

[00:09:37] Speaker 02:
And this is a page that has customer questions and answers.

[00:09:42] Speaker 02:
Here's what's important to note about those questions and answers.

[00:09:46] Speaker 02:
Those questions and answers were posted on February 29th and March 1st of the year 2020.

[00:09:54] Speaker 02:
I'm sorry, 20477.

[00:09:57] Speaker 03:
I'm sorry if I misspoke.

[00:10:05] Speaker 02:
I want to make sure that you're there because I think it's really important to see this.

[00:10:09] Speaker 02:
As I said, this is an Amazon Trinia web page, and these are customer comments, customer questions, and customer answers.

[00:10:17] Speaker 02:
Now, first of all, I want to point out that page 46 of the red brief, my friend told this court that, quote, top brand told customers the top brand's product was the real brand, Comfy.

[00:10:29] Speaker 02:
Well, that wasn't top brand speaking at all.

[00:10:31] Speaker 02:
That was a customer.

[00:10:32] Speaker 02:
It's a customer question, not even an answer.

[00:10:36] Speaker 02:
At best, one of the four answers suggested that a consumer was confused.

[00:10:40] Speaker 02:
But confused about what?

[00:10:42] Speaker 02:
Confused about the use of Comfy on the Catalonia website?

[00:10:46] Speaker 02:
No.

[00:10:46] Speaker 02:
First of all, this is a Torinia website.

[00:10:48] Speaker 02:
Second of all, when did Comfy appear on the Catalonia website?

[00:10:54] Speaker 02:
2021.

[00:10:55] Speaker 02:
This could not have had anything to do with the limited use of the Comfy on the pull-down menu.

[00:11:05] Speaker 04:
Suppose that your client had said, our brand is comfy brand.

[00:11:15] Speaker 04:
And they had used that terminology.

[00:11:18] Speaker 04:
And that, of course, wouldn't be registrable.

[00:11:21] Speaker 04:
It's a federal trademark because it wouldn't be descriptive.

[00:11:24] Speaker 04:
But they go around and they say, comfy brand blankets.

[00:11:30] Speaker 04:
That could create a likelihood of confusion with the Comfey, correct?

[00:11:36] Speaker 02:
I think it's possible, of course.

[00:11:39] Speaker 02:
I'm always hesitant to say that's not this case because you're asking me a hypothetical, but the difference is important here.

[00:11:45] Speaker 04:
So that could possibly create a likelihood of confusion.

[00:11:49] Speaker 04:
I guess the argument is

[00:11:51] Speaker 04:
that the use of the word comfy in your client's website might be read to suggest not the quality or the characteristic of the product, but the name of the product.

[00:12:06] Speaker 02:
It might be.

[00:12:07] Speaker 02:
Where's the survey evidence that shows that?

[00:12:10] Speaker 02:
Where is the expert testimony that shows that?

[00:12:13] Speaker 02:
It wasn't there.

[00:12:14] Speaker 02:
They put up this thing and said, we get to use the word comfy.

[00:12:17] Speaker 02:
They don't.

[00:12:18] Speaker 02:
That was their theory of the case.

[00:12:20] Speaker 02:
And their last, by the way, their last piece, okay.

[00:12:22] Speaker 04:
I mean, I'm not sure that they have to have a survey evidence or expert testimony.

[00:12:28] Speaker 04:
Why is the jury not entitled to look at their drop down menu and say, they're using the word comfy as the brand for their product?

[00:12:39] Speaker 02:
I don't, on this record, no.

[00:12:41] Speaker 02:
Because if you look in the context, the pull-down menu says comfy, and then it says snuggly right below.

[00:12:47] Speaker 02:
These are descriptors.

[00:12:49] Speaker 02:
And that's what Mr. McGann testified to.

[00:12:51] Speaker 02:
Was there any testimony to the contrary that a consumer was confused, a single consumer was confused by that?

[00:12:58] Speaker 02:
No.

[00:12:58] Speaker 02:
That's not, we don't let the jury speculate on such things in trademark cases.

[00:13:03] Speaker 02:
In trademark cases, we ask for

[00:13:06] Speaker 02:
the jury to be guided with actual evidence.

[00:13:08] Speaker 02:
What we have here is lawyer speculation.

[00:13:10] Speaker 02:
And that's all we have.

[00:13:12] Speaker 02:
Those four pieces of evidence, that's it.

[00:13:14] Speaker 02:
They didn't even put on expert evidence on this.

[00:13:18] Speaker 02:
Trade dress evidence, sure.

[00:13:19] Speaker 02:
But they lost their trade dress case.

[00:13:21] Speaker 02:
Trademark expert evidence, none of it.

[00:13:24] Speaker 02:
What was their trademark damages that their expert calculated?

[00:13:28] Speaker 02:
$3,000 in revenues attributable to the trademark.

[00:13:32] Speaker 02:
$3,000 in revenues.

[00:13:34] Speaker 03:
one point five four million dollar awards for trade markets are doable weakness of their mark is that it might be a factor but we don't have to get there in that case because of the total lack of any evidence in this case uh... obvious that they're running out of time my time is yours if we were

[00:13:59] Speaker 03:
order that the district court granted a judgment as a matter of law of no infringement on the design patent.

[00:14:06] Speaker 03:
Are you still pressing your obviousness counterclaim?

[00:14:11] Speaker 02:
I think we'd be happy to, if we got a judgment of non-infringement in this case, we're not intending to sow salt into their fields.

[00:14:18] Speaker 02:
We just want to win this case and be able to compete not in the courtroom, but in the marketplace.

[00:14:23] Speaker 01:
We don't have much time, hardly any, but can you make a brief comment on damage this year?

[00:14:28] Speaker 02:
Yes.

[00:14:32] Speaker 02:
Which aspect of it the trademark the trademark damages themselves where did the jury get to 1.54 million dollar damage awards for each of the Alleged infringements of the two the comfy trademarks.

[00:14:49] Speaker 02:
It's exactly to the penny ten percent of their design patent award.

[00:14:54] Speaker 02:
It's double recovery and

[00:14:55] Speaker 02:
It's not supported by the evidence at all in this case, and even if there were any trademark liability.

[00:15:02] Speaker 02:
And that's why I started there, because I think you can take care of this issue by just saying no liability, no liability.

[00:15:09] Speaker 02:
But if you start there, if you get past the liability issue,

[00:15:15] Speaker 02:
There is absolutely no evidence in fact look at their closing look at their expert you will not find any calculated evidence of Trademark damages the only thing you'll see is an argument made whole cloth frankly by my friend's trial counsel saying every one of our sales was now attributable to that pulldown menu and so they should get 66 million dollars and

[00:15:43] Speaker 02:
That's not right.

[00:15:44] Speaker 02:
Thank you.

[00:15:45] Speaker 02:
I hope I'll have a little bit of time on rebuttal.

[00:15:47] Speaker 02:
We'll give you a minute, sir.

[00:15:50] Speaker 04:
Ms.

[00:15:51] Speaker 04:
Wilbert.

[00:15:56] Speaker 00:
May it please the court, Johanna Wilbert representing Cozy Conflict.

[00:16:01] Speaker 00:
Turning first to the claim construction issue, this issue is waived.

[00:16:06] Speaker 00:
Power integration explains that when a district court

[00:16:09] Speaker 00:
has not finally addressed a claim construction issue.

[00:16:13] Speaker 00:
It is incumbent on the party that does not agree with the district court's claim construction order to raise that issue before it is submitted to the jury.

[00:16:22] Speaker 04:
Let's assume for the moment that we don't accept that.

[00:16:25] Speaker 04:
Do you agree that the statements that they made in the course of the prosecution constituted a disclaimer?

[00:16:32] Speaker 04:
Or if not, why not?

[00:16:35] Speaker 00:
No.

[00:16:35] Speaker 00:
Cozy Comfort's statement do not rise to the level of a clear disavowal.

[00:16:40] Speaker 00:
Cozy Comfort differentiated that its enlarged whole body blanket was different than the white sweatshirt, arguing that the designs were not substantially the same design due in part to the grossly exaggerated size as a whole body blanket.

[00:16:55] Speaker 00:
It's very important that we look at appendix 15107 through 15107 through 151010.

[00:17:09] Speaker 00:
Top brand has cherry picked some individual statements.

[00:17:12] Speaker 00:
But when it is read in the context of its argument, it opens at the top making the point that it is the overall design that is different.

[00:17:24] Speaker 00:
Then the office action describes the pictures of the claim and again concludes after talking about the collective differences that for all of the above reasons,

[00:17:37] Speaker 00:
applicant submits the two designs are not substantially the same.

[00:17:42] Speaker 00:
So here, when you think about the policy and the difference between utility patents and design patents, for design patents, when a party generally distinguishes prior art without a specific statement that rises to the level of disavowal, these key distinctions are actually captured in the infringement and the anticipation analysis

[00:18:04] Speaker 00:
because an ordinary observer is deemed to be knowledgeable of the prior art.

[00:18:08] Speaker 03:
It seems like the implication of your argument, though, is that there can't be prosecution history to stop all for a design patent unless you amend the figures.

[00:18:19] Speaker 03:
Is that what you're saying?

[00:18:20] Speaker 00:
No, that's not what I'm saying.

[00:18:22] Speaker 00:
I'm trying to distinguish this office action from what existed in the Nike versus Skechers case.

[00:18:27] Speaker 00:
That's an example where there was clear disavowal.

[00:18:29] Speaker 00:
And that's an example where Nike, in the context of an IPR, said a critical element.

[00:18:36] Speaker 03:
Your friend on the other side took us through three very clear instances where the applicant here said, these are significant differences.

[00:18:48] Speaker 03:
And this is why we are, this is our invention.

[00:18:51] Speaker 03:
This is why we are not white.

[00:18:55] Speaker 03:
doesn't that have to have some impact on claim scope when you're that clear in making a statement that leads to patentability?

[00:19:04] Speaker 00:
The reason it's not as clear as Top Brand is arguing is because those were verbal descriptions of the figures that were examples to the higher point that the overall design is very different because of the gross proportions.

[00:19:18] Speaker 00:
But even though I don't agree that there was clear just about, if there was, Pacific Coast Marine is very instructive.

[00:19:24] Speaker 00:
that even if there was disavowal, there is clear evidence supporting infringement because Pacific Coast Marine explains that the range concept from utility patents doesn't apply to design patent context.

[00:19:41] Speaker 00:
So in that case, there was a boat windshield with a four-hole vent design, and that party canceled claims for a two-hole design.

[00:19:50] Speaker 00:
And there was a finding of infringement for a boat with three-hole designs.

[00:19:54] Speaker 00:
And Pacific Coast Marine says that the concept of ranges doesn't apply in the same way, so that by canceling the claims for the two-hole design, the party did not give up the range between 0 and 4.

[00:20:06] Speaker 00:
Here.

[00:20:07] Speaker 04:
Let me give you a hypothetical, see if I can understand this.

[00:20:10] Speaker 04:
Suppose during prosecution the applicant said, I'm distinguishing this piece of prior art because that piece of prior art has a round

[00:20:23] Speaker 04:
a pocket and we have a square pocket.

[00:20:26] Speaker 04:
And shouldn't the jury be told that the claim design under those circumstances includes a square pocket?

[00:20:37] Speaker 00:
In your hypothetical, is that the only distinction made?

[00:20:39] Speaker 04:
Yeah.

[00:20:40] Speaker 00:
Then, yes.

[00:20:42] Speaker 00:
If that's the only distinction made, I think that gets us closer to the Nike versus Skechers case.

[00:20:47] Speaker 04:
Why are the distinctions here not like that, where they say,

[00:20:51] Speaker 04:
This is different from white because our pocket is closer or further down the hood or whatever, further down the garment.

[00:21:03] Speaker 00:
It's different because this office action starts out talking about the total, all of the ornamental features combined together to give this claim design, which is a big wearable whole body blanket.

[00:21:16] Speaker 00:
It's a whole body blanket, which it distinguishes from a sweatshirt design.

[00:21:20] Speaker 00:
And it doesn't distinguish it.

[00:21:21] Speaker 00:
In your hypothetical, you only said, well, what if we distinguish on this one feature?

[00:21:25] Speaker 00:
This distinction was on the totality of all these elements combined that give an ornamental appearance that a substantial observer would be able to see.

[00:21:33] Speaker 00:
So we have to have words when responding to office actions.

[00:21:37] Speaker 00:
Otherwise, it would just be pictures moving back and forth.

[00:21:40] Speaker 00:
And the premise here is that they're not substantially the same because of the grossly exaggerated size.

[00:21:48] Speaker 00:
That's the first paragraph.

[00:21:50] Speaker 00:
then every element that they distinguish is explaining their figures and concluding with the idea that all of these elements come together to make a different invention.

[00:21:59] Speaker 00:
This would almost be like saying if you have a patent on a car with four wheels

[00:22:04] Speaker 04:
why a bicycle with two wheels is different i don't see their post-construction uh... is not uh... precluded overall valuation they're not saying because uh... uh... the pockets of particular shape the jury has to find that there's no infringement it's saying it's just how this is how we could prove the claim is having these particular features which were emphasized in prosecution history is distinguishing this from white

[00:22:35] Speaker 04:
So what's wrong with that?

[00:22:36] Speaker 04:
As an instruction, that seems fairly consistent with what happened in the prosecution history.

[00:22:45] Speaker 04:
It's not saying don't make an overall determination.

[00:22:49] Speaker 04:
Make an individualized determination.

[00:22:52] Speaker 00:
So what's wrong with that is really Croc's warning of how the dangers of reliance on verbal claim construction

[00:22:59] Speaker 00:
When you're looking at design patents, the pictures can be the best.

[00:23:02] Speaker 00:
But even if you adopt a different claim construction, here it's important to realize that the judge allowed in evidence of white and all of the discussion about the prosecution history.

[00:23:13] Speaker 03:
So there's- If it's a matter of claim scope, that's a question of law that shouldn't be argued in front of the jury, right?

[00:23:20] Speaker 00:
It was not being argued in front of the jury.

[00:23:22] Speaker 03:
I understand, but I just don't see where it gets you.

[00:23:25] Speaker 03:
If we think that you disclaimed claim scope, the jury has to be instructed of that in some way as a question of law.

[00:23:31] Speaker 03:
We can't leave it to them to decide if you disclaimed claim scope.

[00:23:35] Speaker 00:
Well, here the infringement test takes into account prior art.

[00:23:38] Speaker 00:
The jury is being instructed that an ordinary observer would be knowledgeable about the prior art, and the white reference here is just another piece of prior art.

[00:23:48] Speaker 03:
Do you argue that you could prove infringement under the construction that was proposed but rejected by the district court?

[00:23:59] Speaker 00:
Absolutely.

[00:24:00] Speaker 00:
One of Top Brand's designs is actually almost identical to Cozy's patent.

[00:24:05] Speaker 00:
There is a significant range of designs.

[00:24:09] Speaker 00:
I'm so sorry, I don't have that number.

[00:24:12] Speaker 00:
We can follow up.

[00:24:12] Speaker 00:
But there were a number of different designs.

[00:24:16] Speaker 04:
You've got to be able to substantiate it by looking at the record and showing us.

[00:24:22] Speaker 04:
You're very trustworthy, but that doesn't mean we don't want to see it.

[00:24:26] Speaker 00:
It was the first design discussed at the trial record below.

[00:24:29] Speaker 00:
I don't have that site for you.

[00:24:30] Speaker 00:
I apologize.

[00:24:32] Speaker 00:
But there is a significant range between the white design and the top brand design.

[00:24:38] Speaker 00:
And because the top-ran design is not identical to the white design, there still is evidence to prove infringement.

[00:24:46] Speaker 00:
There's actually a very clear record that supports a finding of infringement.

[00:24:50] Speaker 00:
If you'd look at the evidence of Cozy Comfort's garment design expert, Mr. Crumbly, he discusses how he compared the patented design to physical samples and how there are similarities.

[00:25:03] Speaker 00:
That's at appendix 24754.

[00:25:07] Speaker 00:
through 24757.

[00:25:09] Speaker 00:
His testimony continues through 24581 and talks about the similarities.

[00:25:16] Speaker 04:
The problem we have is that we've said repeatedly that design patents have very limited scope.

[00:25:23] Speaker 04:
And comparing these things in the light of the disclaimers that were made, the accused product seems to be different.

[00:25:38] Speaker 00:
The accused product is different than the white design.

[00:25:40] Speaker 04:
No, different from the patented design.

[00:25:45] Speaker 04:
Your Honor, with due respect, it appears that they are newly identical based on... Maybe you can't do it, but show me an example that shows the similarity in the lighter pine construction.

[00:25:57] Speaker 04:
But you don't have to.

[00:25:59] Speaker 00:
Cozy Comfort submitted testimony of its expert witness that went through and compared elements by element.

[00:26:06] Speaker 00:
So reviewing that testimony would be the reason why the record supports a finding of infringement, even if there is this claim construction argument.

[00:26:16] Speaker 04:
I wanted to turn to the trademark infringement question.

[00:26:20] Speaker 00:
Turning to the trademark issue, you questioned whether the question was raised as to where this redirect goes and the evidence in.

[00:26:27] Speaker 00:
Page 10 of the red brief.

[00:26:29] Speaker 00:
explains that the comfy website links were redirected to the Amazon store, and that's based on Nan's testimony.

[00:26:37] Speaker 00:
The trial testimony is that appendix.

[00:26:39] Speaker 04:
Can you review which Amazon website was it directed to?

[00:26:46] Speaker 04:
Can you show us in the record the Amazon website?

[00:26:50] Speaker 00:
As we understand, there is only one Amazon website.

[00:26:52] Speaker 04:
None of us show us.

[00:26:53] Speaker 00:
Sure.

[00:26:54] Speaker 00:
Appendix 23799.

[00:26:58] Speaker 00:
23799 at lines 2 through 11.

[00:27:03] Speaker 03:
Hold on a second.

[00:27:05] Speaker 03:
23.

[00:27:06] Speaker 03:
This is testimony.

[00:27:07] Speaker 03:
It's not the actual website.

[00:27:09] Speaker 00:
Correct.

[00:27:09] Speaker 00:
The website was an exhibit.

[00:27:11] Speaker 03:
Where's the exhibit?

[00:27:15] Speaker 00:
OK.

[00:27:15] Speaker 00:
So the website is the exhibit at 2467.

[00:27:18] Speaker 04:
204.

[00:27:21] Speaker 00:
I'm sorry.

[00:27:45] Speaker 00:
20492 shows the website.

[00:27:49] Speaker 04:
20492 shows the website.

[00:27:54] Speaker 00:
Then Mr. Nunn gave... 20492.

[00:28:01] Speaker 04:
That's your website.

[00:28:03] Speaker 03:
The Catalonia website.

[00:28:05] Speaker 04:
That's your website, right?

[00:28:07] Speaker 04:
I thought we were talking about the Amazon website.

[00:28:10] Speaker 00:
That website redirects to the Amazon.

[00:28:13] Speaker 04:
But I want you to look at the Amazon website for which you say it redirects.

[00:28:18] Speaker 00:
There's testimony that it redirects.

[00:28:20] Speaker 04:
No, no, no, no, no.

[00:28:22] Speaker 04:
Where?

[00:28:22] Speaker 04:
I want to look at the Amazon website.

[00:28:25] Speaker 00:
I don't... I want to look what it shows.

[00:28:32] Speaker 04:
So the Amazon website is a... Isn't that at 20469?

[00:28:40] Speaker 04:
is that the Amazon website there are some Amazon comments and yes that is yes that okay that's the Amazon website yes yes yes okay so if you look at it the top-rand product isn't described in this website is comfy the only descriptions

[00:29:05] Speaker 04:
are of your client's product, the Comfy.

[00:29:09] Speaker 04:
There's no use of the word Comfy to describe their product, right?

[00:29:14] Speaker 00:
No, that's not correct.

[00:29:15] Speaker 04:
No?

[00:29:15] Speaker 04:
Okay, so show me where it shows that.

[00:29:17] Speaker 00:
At the bottom, there are comments and it's Appendix 24430.

[00:29:21] Speaker 04:
Let's post side the comments for a moment.

[00:29:25] Speaker 04:
The website itself doesn't, they don't use the word Comfy to describe their product, right?

[00:29:30] Speaker 00:
The Amazon website does not, but the company's website redirects to the Amazon website

[00:29:35] Speaker 00:
and the sales from the company's website.

[00:29:37] Speaker 04:
But the Amazon website doesn't describe their product as comfy.

[00:29:42] Speaker 00:
The comments are part of the description.

[00:29:43] Speaker 00:
The comments are part of that website.

[00:29:45] Speaker 04:
I ask you to put aside the comments.

[00:29:47] Speaker 04:
The website, apart from the comments, does not describe their product as comfy, right?

[00:29:53] Speaker 04:
Correct.

[00:29:54] Speaker 04:
Okay.

[00:29:54] Speaker 04:
And it distinguishes, it shows the company for other products, right?

[00:30:00] Speaker 00:
In the comments.

[00:30:01] Speaker 00:
The words the comfy are used in the comments.

[00:30:03] Speaker 04:
I asked you to put aside the comments.

[00:30:04] Speaker 00:
Okay.

[00:30:05] Speaker 04:
Just in the website itself.

[00:30:06] Speaker 04:
There's no use by them of comfy to describe their product and it shows your client's product as the comfy, right?

[00:30:16] Speaker 04:
No likelihood of confusion based on the website.

[00:30:20] Speaker 04:
Putting aside the comments, right?

[00:30:22] Speaker 00:
We believe there is a likelihood of confusion.

[00:30:24] Speaker 04:
Based just on the website without the comments?

[00:30:28] Speaker 00:
based on their company website.

[00:30:31] Speaker 04:
No, no.

[00:30:31] Speaker 04:
I'm talking about in the Amazon website.

[00:30:33] Speaker 04:
There's no confusion.

[00:30:35] Speaker 04:
It doesn't create any confusion between the two products, right?

[00:30:39] Speaker 00:
The comments aren't implicit part of the website.

[00:30:42] Speaker 00:
It's part of the website.

[00:30:44] Speaker 04:
I'm sorry.

[00:30:44] Speaker 04:
You've got to accept my hypothetical.

[00:30:47] Speaker 04:
Okay.

[00:30:47] Speaker 04:
Put aside the comments.

[00:30:48] Speaker 04:
There's nothing in the website that would create a confusion between their product and your product.

[00:30:55] Speaker 00:
We disagree because there's evidence of actual confusion.

[00:30:58] Speaker 00:
Customers contacted my client because they were confused.

[00:31:01] Speaker 00:
That's also in the record.

[00:31:03] Speaker 00:
That was testosterone.

[00:31:04] Speaker 04:
You're not accepting my hypothetical.

[00:31:05] Speaker 04:
Just looking at the website itself, there's no possible confusion between their product and your product, right?

[00:31:18] Speaker 00:
Only if you would accept that the comments are not part of the website, which I think is a fundamental flaw of the premise of the hypothetical.

[00:31:24] Speaker 04:
So why did the comments create the confusion?

[00:31:28] Speaker 00:
The comments create confusion because they are allowed, the company allowed them to stay up, and the companies use the trademark of the comfy.

[00:31:36] Speaker 00:
There are questions asking, is this the brand comfy?

[00:31:39] Speaker 04:
And as long as those comments- Did they control the comments?

[00:31:43] Speaker 00:
They can.

[00:31:43] Speaker 00:
That's why comments don't have high standards.

[00:31:46] Speaker 03:
But what's the evidence of that?

[00:31:48] Speaker 03:
Is there evidence in the record that the company controls the comments?

[00:31:51] Speaker 00:
It's a function of how websites work.

[00:31:53] Speaker 03:
I don't happen to know that.

[00:31:56] Speaker 00:
OK.

[00:31:57] Speaker 00:
Even if we'd move on, you're on.

[00:31:59] Speaker 00:
I'm sorry.

[00:32:00] Speaker 00:
I just need a note of time.

[00:32:01] Speaker 03:
No, I understand.

[00:32:02] Speaker 03:
But is there evidence from which the jury could have found that the company is responsible for the comments?

[00:32:08] Speaker 03:
There may well be.

[00:32:09] Speaker 03:
I just don't know.

[00:32:10] Speaker 00:
Non-testified that they have one Amazon page that his company controls that Amazon page and testified that their website redirects the Amazon page and then there was evidence of sales.

[00:32:21] Speaker 04:
Where did he testify they control the Amazon page?

[00:32:23] Speaker 00:
He says that it redirects the Amazon store page at appendix 23772 through 23773.

[00:32:37] Speaker 01:
Looking at the page number that you you decided to us I looked at some of the following pages and I Recalled that at the very top.

[00:32:44] Speaker 01:
There's a there's a legend The next five pages and it's got pictures of the comfy and everything and at the top it says amazon.com Oversize hoody blanket sweatshirt comfortable shirt for John it goes on and then it's got the comments about this is this

[00:33:04] Speaker 01:
Legend.

[00:33:04] Speaker 01:
Amazon.com.

[00:33:06] Speaker 01:
Is that on the web page itself?

[00:33:08] Speaker 01:
Are these actual copies of the web page?

[00:33:11] Speaker 01:
Yes, Your Honor.

[00:33:13] Speaker 01:
So every one of these pages does say Amazon.com at the top.

[00:33:17] Speaker 00:
Yes, that's an actual printout.

[00:33:19] Speaker 00:
When it appears on the computer, it appears in a different format, but that's the printout.

[00:33:26] Speaker 00:
And the point here about the trademark infringement is that this was through website sales, and we put in record

[00:33:34] Speaker 00:
the top line revenue generated from the website.

[00:33:38] Speaker 00:
That is the burden that Cozy Comfort had in establishing damages.

[00:33:45] Speaker 00:
It was incumbent then on Top Brand to show what needed to be subtracted out.

[00:33:50] Speaker 00:
And the jury found a factual dispute and evaluated credibility to determine the damage number that they came up with.

[00:34:01] Speaker 04:
Thank you.

[00:34:11] Speaker 02:
Unless the court has any questions for me, I think we're content to rest on our argument already given.

[00:34:18] Speaker 04:
Thank you.