[00:00:01] Speaker 02:
Good morning and may it please the court.

[00:00:03] Speaker 02:
My name is Bruno Terbisi and I represent Plaintiff Appellant Mike Saradine.

[00:00:10] Speaker 02:
Your Honours, this case involves a group of defendants who acquired a cannabis company called Alien Labs and then expanded into vaporizers and e-liquids that directly compete with and infringe my client's prior trademark rights in the alien vape mark and related marks.

[00:00:31] Speaker 02:
In fact, after the acquisition and expansion, defendants proceeded to file federal trademark applications for alien labs in connection with the vaporizers and e-liquids.

[00:00:45] Speaker 02:
And the U.S.

[00:00:46] Speaker 02:
Penn and Trademark Office, the USPTO, rejected and refused those applications, finding a likelihood of confusion with my client's prior registered marks for the same goods.

[00:00:59] Speaker 02:
In finding a likelihood of confusion,

[00:01:01] Speaker 02:
the USPTO found the mark similar, found the good similar, found the trade channel similar, and the issued a final refusal that the defendants were unable to overcome.

[00:01:12] Speaker 02:
So, as such, this is really a relatively straightforward trademark infringement case, but the district court did commit a few errors in denying Mr. Sardin's motion for preliminary injunction.

[00:01:26] Speaker 02:
Before getting into the

[00:01:29] Speaker 02:
substance or the merits of the motion.

[00:01:32] Speaker 02:
I'd like to address an overarching issue, which is the district court's failure to comply with Rule 52, which required findings of fact and conclusions of law.

[00:01:48] Speaker 02:
The district court did not issue any written opinion setting forth its reasoning.

[00:01:55] Speaker 02:
The only thing that was issued was a minute order saying denied.

[00:02:00] Speaker 02:
Didn't contain any reasoning.

[00:02:02] Speaker 02:
Didn't contain any.

[00:02:03] Speaker 01:
What about the oral statements though?

[00:02:05] Speaker 02:
Right.

[00:02:06] Speaker 02:
So that leaves us with the hearing and the transcript of the hearing.

[00:02:11] Speaker 02:
And as set forth in the appellate briefing, you can't really tell what the court concluded with regard

[00:02:19] Speaker 02:
to certain sleet craft likelihood of confusion factors, particularly, for example, factor four, actual confusion, and factor seven and eight.

[00:02:33] Speaker 02:
And you can't tell.

[00:02:34] Speaker 01:
I mean, I don't know really what this would get you.

[00:02:37] Speaker 01:
It seems if this went back to Judge Calabretta, I have kind of a sense of where he might go with this based on what he's already said.

[00:02:44] Speaker 01:
I mean, he seemed to question the lack of evidence of confusion.

[00:02:49] Speaker 01:
So I don't know why that wouldn't be enough.

[00:02:51] Speaker 01:
I mean, it seems like we have plenty enough to review this.

[00:02:55] Speaker 01:
Right.

[00:02:55] Speaker 02:
So for example, with factor four actual confusion, it's not clear whether the court ended up weighing that as neutral and not in favor of either party or whether the court weighed it in defendant's favor.

[00:03:10] Speaker 01:
What is the evidence of actual confusion?

[00:03:12] Speaker 02:
So the evidence of actual confusion, at least

[00:03:16] Speaker 02:
On the record before the appellate court is some messages that were sent to my client that were intended for the defendants.

[00:03:29] Speaker 02:
But part of the issue with factor four is, you know, it's pretty well established that actual confusion is not a requirement for likelihood of confusion.

[00:03:42] Speaker 02:
The absence of actual confusion under this factor usually just makes this factor neutral as opposed to making it way in favor of the defendant.

[00:03:56] Speaker 03:
My impression is that you're contending that the district judge was required to go through every sleek craft factor in making a likelihood of confusion decision.

[00:04:06] Speaker 03:
Is that correct?

[00:04:08] Speaker 02:
The general rule, the Ninth Circuit rule is that

[00:04:12] Speaker 02:
The district court is required to go through all relevant sleep craft factors and in this case, you know All of the factors come into play.

[00:04:22] Speaker 02:
They were all Addressed by the court.

[00:04:25] Speaker 02:
We just can't tell how factors four seven and eight were really even weighed by the court and when you look at the totality, you know, you need to evaluate and weigh and

[00:04:37] Speaker 02:
the eight sleep craft factors.

[00:04:40] Speaker 03:
What I struggle with, though, is we're supposed to compare the marks as they appear in the marketplace, not in isolation.

[00:04:48] Speaker 03:
And what I see in the record, it doesn't really show what appeared in the marketplace.

[00:04:52] Speaker 03:
There may be one or two, but everything else is just, you see, here's theirs, here's yours, but nothing that really deals with the marketplace.

[00:05:00] Speaker 03:
And perhaps the district judge saw it the same way.

[00:05:03] Speaker 03:
Is that right?

[00:05:06] Speaker 02:
Well, he relied very heavily on how he believed the marks appear in the marketplace.

[00:05:13] Speaker 02:
But when you're comparing the similarity of the marks, there's various legal principles that need to be followed.

[00:05:20] Speaker 02:
And one of them is what you alluded to, that the marks have to be compared in their entirety and in the marketplace.

[00:05:25] Speaker 02:
But the other principle is you have to look at the marks and compare them in terms of sight, sound, and meaning.

[00:05:33] Speaker 02:
The district court didn't look at sound and meaning.

[00:05:36] Speaker 02:
These marks also appear, when you're encountering them in the marketplace, it's not always visually, right?

[00:05:44] Speaker 02:
They're spoken on podcasts, YouTube videos.

[00:05:51] Speaker 02:
They also exist in people's minds in terms of meanings and connotations.

[00:05:56] Speaker 02:
And both of these brands have a similar meaning and

[00:06:01] Speaker 02:
theme, which is aliens, extraterrestrials, outer space, right?

[00:06:06] Speaker 03:
But forgive me, that's pretty, well, I should call it ethereal.

[00:06:12] Speaker 03:
It's very, very general.

[00:06:14] Speaker 03:
You know, I look at these marks and they look very distinct to me.

[00:06:18] Speaker 03:
They deal with a product that's somewhat similar, but they're really quite different.

[00:06:22] Speaker 03:
I would never be confused by looking at these two.

[00:06:25] Speaker 03:
What evidence was before the district court

[00:06:28] Speaker 03:
that show that actual consumers were confused by these different marks?

[00:06:35] Speaker 02:
Well, again, actual confusion is not required at this stage and for factor four, the absence of actual confusion

[00:06:43] Speaker 02:
just means factor four is weighed neutral.

[00:06:47] Speaker 02:
There was an instance of actual confusion that was submitted by plaintiff in the motion for preliminary injunction briefing.

[00:06:59] Speaker 02:
The district court did reference it in the hearing but decided that it was not, the volume was not sufficient and disregarded it.

[00:07:11] Speaker 02:
And our contention is

[00:07:13] Speaker 02:
okay if you're going to disregard the evidence of actual confusion as minimal or de minimis this factor according to ninth circuit law it should be deemed neutral and in that case you have a situation where the district court of all these eight sleep craft factors really only found the factor three similarity of marks to tip slightly in defendants favor and so how can you have

[00:07:40] Speaker 02:
how can you weigh the totality of the marks and find one factor to be dispositive?

[00:07:46] Speaker 02:
That's also a general principle that no one factor is dispositive.

[00:07:51] Speaker 03:
Well, I think this gets back though to what my colleague mentioned.

[00:07:55] Speaker 03:
It is true that the district judge didn't articulate under Rule 52 perhaps as much as could be done, but there was a lot said that explained the judge's reasoning.

[00:08:07] Speaker 03:
You don't have to analyze every one of the sleek craft factors and if the district judge explained What was the motivation for the decision?

[00:08:16] Speaker 03:
But it met the requirements Why are we why are we contesting that?

[00:08:22] Speaker 02:
well, you do need to address each of the factors that are relevant and You know for example by the way there were other marks that issue You know my class the area 51 mark the defendants have the area 41 mark

[00:08:37] Speaker 02:
the district court didn't even address those marks.

[00:08:40] Speaker 02:
And, you know, in terms of appearance in the marketplace, I know there's a big focus on that, but, you know, my client has a standard character mark, and the standard character mark covers different fonts and stylizations and depictions of the mark.

[00:08:58] Speaker 02:
And like the USPTO said,

[00:09:01] Speaker 02:
When you're dealing with marks that, you know, have fonts and stylizations and characterizations, it's still the literal element, the words that are dominant and carry more weight because that's what people remember.

[00:09:16] Speaker 02:
And, you know, there's also another rule when you're comparing similarity marks, which is if you find that the goods are proximate or related or similar, then it takes less similarity on factor three

[00:09:31] Speaker 02:
under a sleep craft analysis.

[00:09:33] Speaker 02:
And so that also doesn't appear to have been considered by the court.

[00:09:39] Speaker 02:
In addition, you know, I also want to point out in terms of appearance in the marketplace, I mentioned how, okay, you're not always seeing the marks visually.

[00:09:48] Speaker 02:
Sometimes you're hearing them.

[00:09:50] Speaker 02:
Sometimes you're remembering them.

[00:09:51] Speaker 02:
But, you know, there are instances where the defendants are using alien labs

[00:09:59] Speaker 02:
not in a character, you know, a stylized font, just in plain text.

[00:10:03] Speaker 02:
So, you know, consumers do encounter the mark in different ways.

[00:10:09] Speaker 02:
So, you know, that is worth pointing out as well.

[00:10:12] Speaker 00:
Council, let me change the subject of this a bit.

[00:10:15] Speaker 00:
This is denial of preliminary injunction.

[00:10:16] Speaker 00:
The winter's factors come into play, including irreparable harm.

[00:10:21] Speaker 00:
Why did your client wait 18 months before seeking the preliminary injunction?

[00:10:25] Speaker 00:
It seems if they're suffering this irreparable harm, it would have been exacerbated by that delay.

[00:10:30] Speaker 02:
Yes, Your Honor.

[00:10:31] Speaker 02:
So I would say two things.

[00:10:33] Speaker 02:
First, I note that the District Court did not deny the motion on that basis.

[00:10:39] Speaker 02:
And I don't think the defendants cross-appealed on that basis.

[00:10:43] Speaker 02:
But to answer your question, there were pending motions to dismiss.

[00:10:50] Speaker 02:
And this is briefed in the lower court.

[00:10:53] Speaker 02:
And we were waiting for the District Court to resolve

[00:10:57] Speaker 02:
the motions to dismiss because there was no point to file a motion for preliminary injunction if the court was going to dismiss the case.

[00:11:05] Speaker 02:
It got lost somehow in the lower court.

[00:11:10] Speaker 02:
The motion did.

[00:11:11] Speaker 02:
And we were waiting so long that we ended up filing the motion because we figured maybe that would trigger the court dealing with the motion to dismiss.

[00:11:21] Speaker 02:
And that is what ended up happening.

[00:11:23] Speaker 02:
And then we did cite cases.

[00:11:27] Speaker 02:
in the lower court standing for the proposition that if there are pending motions to dismiss, that time period while you're waiting for those to be resolved will not be counted against you in the irreparable harm prong.

[00:11:41] Speaker 00:
One other thing, what weight, if any, should the District Court have given to the U.S.

[00:11:48] Speaker 00:
Patent and Trademark Office's denial?

[00:11:51] Speaker 02:
Admittedly, the USPTO's findings are not dispositive, they're not determinative, but generally they're afforded some persuasive value.

[00:12:02] Speaker 02:
And I would say in this case, the USPTO's analysis was more detailed than the district court's analysis, especially in terms of looking at the dominant terms, the inherently distinctive terms.

[00:12:17] Speaker 02:
So, you know, traditionally when you're looking

[00:12:21] Speaker 02:
comparing marks, the dominant term and the first word are weighed more heavily.

[00:12:25] Speaker 02:
That's what people remember.

[00:12:27] Speaker 02:
Inherently distinctive terms are weighed more heavily.

[00:12:30] Speaker 02:
And generic or weak descriptive terms like vape and labs, they're not discounted altogether, but they're weighed less heavily.

[00:12:40] Speaker 02:
And the literal element is weighed more heavily than designs and fonts and characterizations.

[00:12:45] Speaker 02:
So we believe the district court

[00:12:49] Speaker 02:
Acknowledged the existence of the usp2 is finding but didn't really afford it any persuasive value Can I ask a quick question on the area 51 versus area 41?

[00:13:01] Speaker 03:
Do you think you gave the district court enough to go on and that?

[00:13:06] Speaker 02:
particular claim We did address it in in the briefing Obviously the focus was on the alien

[00:13:15] Speaker 02:
marks as they make up the bulk of each party's products.

[00:13:21] Speaker 02:
But we did address it.

[00:13:23] Speaker 02:
And you'll see that in the hearing, the court acknowledged the similarity between Area 51 and Area 41.

[00:13:33] Speaker 02:
But when it moved to its conclusions on Factor 3, it didn't address Area 51 and Area 41 at all.

[00:13:47] Speaker 03:
But you feel that what you gave the district court was sufficient to be successful in that particular claim?

[00:13:54] Speaker 02:
Yes.

[00:13:54] Speaker 02:
Yes, Your Honor.

[00:13:55] Speaker 02:
And I'll say with regard to the irreparable harm prong under Winsor Factor 2, you'll see that obviously the district court didn't afford the presumption because it decided that plaintiff did not show a likelihood of success on merits.

[00:14:12] Speaker 02:
But then it went on to discuss financial harm

[00:14:16] Speaker 02:
as a showing of irreparable harm, which was a little confusing and which we contend is legal error because monetary damages are the opposite of irreparable harm, you know.

[00:14:31] Speaker 02:
Remedies at law are not irreparable harm.

[00:14:34] Speaker 02:
Usually for trademarks you're talking about the damage to trademark owner's goodwill, the inability to control one's reputation and perception of the mark,

[00:14:45] Speaker 02:
If you've invested heavily into your mark Not obtaining a reasonable rate of return because of that infringement, so Those are the types of irreparable harm that really come into play in trademark infringements why the trademark modernization act reinstated the presumption of irreparable harm because it was so difficult before Before it got codified to prove that

[00:15:11] Speaker 01:
I see I'm out of time, Your Honors, unless you have... Well, we'll put two minutes on the clock for rebuttal, just so you have the opportunity to respond, and we'll hear from your opposing counsel.

[00:15:18] Speaker 01:
Thank you.

[00:15:18] Speaker 01:
Thank you.

[00:15:30] Speaker 04:
Good morning, Your Honors.

[00:15:31] Speaker 04:
May it please the Court?

[00:15:32] Speaker 04:
My name is Maria Sinatra, and I represent the APHELES, a group of entities and an individual which I will collectively refer to as connected.

[00:15:41] Speaker 04:
The purpose of a preliminary injunction is to maintain the status quo pending a determination on the merits.

[00:15:49] Speaker 04:
Here, the status quo has been the parties peacefully coexisting for almost 10 years in the marketplace.

[00:15:55] Speaker 04:
The district court acted within its discretion to deny the preliminary injunction because it looked at the record evidence and applied the correct legal standards of Winter versus Natural Resources Defense Council

[00:16:07] Speaker 04:
and the eight likelihood of confusion factors in AMF Inc.

[00:16:10] Speaker 04:
versus Sleepcraft votes.

[00:16:13] Speaker 04:
Accordingly connected respectfully request that this court affirm In order for the appellant to be successful on his motion.

[00:16:20] Speaker 04:
He needed to satisfy all four prongs of the winter analysis after receiving the briefing from the parties and evidence and holding a hearing the district court found that the appellant was unsuccessful in meeting his burden with regard to two out of the four winter factors and

[00:16:38] Speaker 04:
Lack of imminent irreparable harm and a lack of likelihood of success on the merits Here the record is clear that there's been a significant delay By the appellant in between when he filed the complaint in this action and when he moved for a preliminary injunction roughly 18 months courts within this district as well as throughout the country

[00:17:00] Speaker 00:
Have found that such significant delay negates any evidence of irreparable injury counsel How do you respond to opposing counsel's argument there were pending motions dismiss at that time waiting for resolution?

[00:17:11] Speaker 00:
They thought there was no need to bring the PTO Well your honor.

[00:17:16] Speaker 04:
I'll respond on two ways first the appellants counsel admitted that they filed the preliminary injunction motion to trigger a ruling on the motion to dismiss and

[00:17:28] Speaker 04:
You don't file a preliminary injunction motion to trigger a ruling.

[00:17:31] Speaker 04:
You file a preliminary injunction motion to stop irreparable harm from occurring.

[00:17:37] Speaker 04:
He said it here.

[00:17:38] Speaker 04:
They filed the preliminary injunction motion to trigger a ruling on the motion to dismiss.

[00:17:43] Speaker 04:
The other way I'll respond to your question is that the two cases cited by the appellant for the premise that a ruling on a motion to dismiss is a proper reason to delay

[00:17:53] Speaker 04:
The time regarding the ruling on the motion to dismiss in those cases was significantly different here.

[00:17:59] Speaker 04:
It was a matter of months.

[00:18:01] Speaker 04:
And one of the cases cited involved identical use of an identical trademark, Beverly Hills Hotel, where the font was the same and it was basically a counterfeiting situation.

[00:18:12] Speaker 04:
The other case cited by the appellant for the premise that the motion to dismiss effectively tolls the time to file a preliminary injunction motion

[00:18:22] Speaker 04:
was where a case was transferred and the motion was filed within two months of a case transfer.

[00:18:27] Speaker 04:
So those facts are not present here.

[00:18:31] Speaker 04:
In addition to the delay after filing the complaint in this action, the appellant delayed before the filing of the complaint.

[00:18:39] Speaker 04:
The records clear on page 303 that the appellant had actual knowledge as least as early as May of 2022 of Connected's use of its Alien Labs trademark.

[00:18:50] Speaker 04:
It then delayed, he then delayed six months found in the complaint until December of 2022, and then an additional 18 months until July of 2024 to move for a preliminary injunction here.

[00:19:02] Speaker 04:
In addition to the significant delay that's apparent in the record, the district court asked the appellant during the preliminary injunction hearing, what evidence of irreparable injury do I have in the record?

[00:19:14] Speaker 04:
And the appellant admitted right, so there isn't any.

[00:19:17] Speaker 04:
There isn't a lot of evidence of concrete, any concrete evidence.

[00:19:21] Speaker 04:
And that's on pages nine and 10 of the record.

[00:19:24] Speaker 04:
After asking appellant's counsel what evidence was present and appellant's counsel not being able to point to any, along with the significant temporal delay,

[00:19:35] Speaker 04:
The district court acted within its discretion to find that there was no evidence of irreparable injury sufficient to support a preliminary injunction, extraordinary relief.

[00:19:46] Speaker 04:
In addition to the lack of irreparable injury evidence, the district court also analyzed whether or not the appellant met his burden with regard to a likelihood of success and the merits, finding he failed to do so there as well.

[00:20:02] Speaker 01:
What about the Area 41 versus 51 issue?

[00:20:08] Speaker 04:
Your Honor, the District Court was aware of the Area 51 trademark and discussed it on pages 6 and 33 of the record.

[00:20:16] Speaker 04:
While the district court's analysis of the Area 51 mark in isolation was admittedly not extensive, it was sufficient here to support the district court's ruling.

[00:20:28] Speaker 04:
The appellant failed to meet his burden by putting forth any argument in his motion for preliminary injunction regarding three out of the four winter factors concerning the Area 51 trademark.

[00:20:39] Speaker 04:
He didn't mention it in his briefing at all with regard to imminent irreparable harm.

[00:20:45] Speaker 04:
Didn't mention it with regard to the public interest factor and didn't mention it in the balance of hardships Factor the only area where the appellant mentioned his area 51 trademark at all in his motion for a preliminary injunction Was within the similarity of the marks factor in the sleetcraft analysis It wasn't articulated anywhere else, and that's where the district court discussed it

[00:21:11] Speaker 04:
in the preliminary injunction hearing.

[00:21:13] Speaker 04:
Here the record's clear and sufficient to support that the appellant failed to meet his burden with respect to the Area 51 trademark.

[00:21:21] Speaker 00:
Counsel, the record also shows that your client submitted not one but two different applications to the trademark office that were denied because of the similarity here.

[00:21:32] Speaker 00:
Yet your client barged ahead and set up the company anyway.

[00:21:38] Speaker 00:
How should we review that type of information?

[00:21:41] Speaker 04:
Sure your honor at the time that those applications cited by the appellant were submitted Connected had been using the alien labs trademark for a number of years and has Registrations for the alien labs both federally as well as on the state level so it certainly didn't barge ahead and use the alien labs trademark after receiving an office action Here the district court was aware

[00:22:09] Speaker 04:
of the USPTO examiner's prior ruling raised by the appellant, but was well within the district court's right to not adopt that previous finding.

[00:22:20] Speaker 04:
Particularly, as is the case here, the district court had evidence of how the trademarks were used in the marketplace that was not present before the USPTO examiner.

[00:22:30] Speaker 04:
The applications discussed by the appellant were filed on a 1B intent to use basis.

[00:22:37] Speaker 04:
So Connected did not submit any evidence of trademark use in connection with those applications.

[00:22:44] Speaker 04:
So the USPTO's findings were abstract.

[00:22:48] Speaker 04:
It didn't look to how the marks at issue were being used in the marketplace and actually encountered by consumers.

[00:22:55] Speaker 04:
The district courts

[00:22:57] Speaker 04:
Decision to not abide by a uspto prior ruling is congruent with how other courts throughout the circuit have dealt with prior uspto Findings for example in blue bottle versus layout in that case the district court was presented with a prior uspto ruling But did not adopt it for the same reason as the court

[00:23:20] Speaker 04:
didn't adopt it here, had evidence in front of it that was not present before the USPTO examiner.

[00:23:26] Speaker 04:
And that case discusses additional cases where USPTO examiner evidence was considered but ultimately not adopted.

[00:23:33] Speaker 04:
The Supreme Court and BNB hardware has also made clear that district courts are not bound by previous findings of USPTO examiners concerning trademark applications.

[00:23:47] Speaker 03:
There are, of course, a number of marks at issue in this case.

[00:23:51] Speaker 03:
What portion of those were actually part of the USPTO request application?

[00:24:00] Speaker 03:
Did it include all of them or just part of them?

[00:24:03] Speaker 04:
It only includes part of them your honor Never which ones yes, I do the USPTO Discussed the applicants sorry the appellants purported alien vape trademarks I believe it discussed the trademark alien kiss and alien piss and it did not pertain to the appellants purported area 51 trademark at all yeah

[00:24:30] Speaker 04:
The district court's analysis of the similarity of the marks factor comports with this court's prior precedent.

[00:24:37] Speaker 04:
The district court looked at how the marks appeared as a whole commercially to consumers.

[00:24:44] Speaker 04:
On page 32 of the record, it's clear that the district court analyzed the site, sound, meaning, and commercial impression of the trademark set issue.

[00:24:52] Speaker 04:
The district court explicitly found that the trademarks contained a different number of words, finding the site different.

[00:25:00] Speaker 04:
The district court explicitly stated on page 32 of the record that the marks sound different.

[00:25:06] Speaker 04:
And perhaps most prominently, the district court found considerable differences in how the marks appear to consumers in the marketplace.

[00:25:15] Speaker 04:
And the court discussed that on page 32.

[00:25:18] Speaker 04:
finding that Connected's Alien Labs trademark was always presented in a unique stylized font and that Connected's Alien Labs product packaging was always depicted in a bright psychedelic pattern that was not present with the appellant's product packaging.

[00:25:37] Speaker 04:
And that is sufficient to support the court's findings here and find that his determination regarding the similarity of the marks was within the court's discretion.

[00:25:48] Speaker 04:
the Appellants council briefly mentioned actual confusion So I'll address that factor as well The district court put forth its findings supporting actual confusion again noting the significant time period where the marks have coexisted in the marketplace I do want to clarify that

[00:26:10] Speaker 04:
Appellant's counsel indicated that there were messages.

[00:26:13] Speaker 04:
There was a sole message.

[00:26:15] Speaker 04:
There was not messages.

[00:26:16] Speaker 04:
And that's on page 303 of the record.

[00:26:20] Speaker 04:
Given the significant period of coexistence, the district court acted within its discretion, finding that the actual confusion factor weighed against the likelihood of confusion, particularly where it supported that connected, sold,

[00:26:35] Speaker 04:
over $41 million in Alien Labs products in 2023 alone.

[00:26:40] Speaker 04:
Given that volume of sales, the district court was correct in the court's indication that there should be more evidence of actual confusion here if there was actually a likelihood of confusion.

[00:26:52] Speaker 03:
Your opposing counsel objects to, if you will, a lack of written analysis by the district court under Rule 52.

[00:27:04] Speaker 03:
What's your response to that?

[00:27:08] Speaker 04:
My response, Your Honor, is that a written opinion is not required under Rule 52 at all.

[00:27:15] Speaker 04:
The text of Federal Civil Procedure 52 is clear that oral findings of fact and conclusions of law are sufficient to meet Rule 52.

[00:27:29] Speaker 04:
Accordingly, considering that the district court found that there was a lack of likelihood of success on the merits evidence and a lack of evidence of imminent irreparable injury, it held that the appellant failed to meet his burden with regard to the preliminary injunction factors.

[00:27:47] Speaker 04:
The district court was not required to address the remaining factors under Garcia versus Google, and we respectfully ask that this court affirm.

[00:27:55] Speaker 04:
I'll concede the remainder of my time unless there are further questions.

[00:27:59] Speaker 01:
Okay, thank you.

[00:28:01] Speaker 01:
And we'll hear two minutes of rebuttal.

[00:28:12] Speaker 02:
Your Honours, there was a large focus on the time period that passed.

[00:28:19] Speaker 02:
However, the reference to ten years is misleading because

[00:28:26] Speaker 02:
Defendants, before they acquired that Alien Labs cannabis company, that company was simply a cannabis company.

[00:28:33] Speaker 02:
It did not expand into vaporizers and e-liquids until 2021, summer of 2021.

[00:28:41] Speaker 02:
So that's really when the product started to directly compete with and infringe my client's vaporizers and e-liquids.

[00:28:51] Speaker 02:
In addition, the reference to

[00:28:53] Speaker 02:
you know, existing state trademark registrations, my response to that is those registrations are not for e-liquids and vaporizers.

[00:29:05] Speaker 02:
They're just for cannabis.

[00:29:07] Speaker 02:
And there's no examination process at the state level like there is at the USPTO.

[00:29:13] Speaker 02:
They just rubber-stamp those registrations.

[00:29:15] Speaker 02:
So federal registrations still trump any state registrations, but they're basically a red herring.

[00:29:22] Speaker 02:
They're not an issue.

[00:29:24] Speaker 02:
The reference to the USPTO not addressing Area 51 and Area 41, that's because defendants did not apply for the Area 41 mark at the USPTO.

[00:29:40] Speaker 02:
They applied for Alien Lab, so there'd be no reason for the USPTO to bring up Area 51 in denying

[00:29:49] Speaker 02:
the defendant's Alien Labs trademarks.

[00:29:53] Speaker 02:
They're only making common law use of Area 41, so they're using it without a registration.

[00:29:59] Speaker 02:
Very similar to the fact how they're now using Alien Labs without a registration for vaporizers and e-liquids because they couldn't get that registration at the USPTO.

[00:30:23] Speaker 02:
Again, with regard to the delay.

[00:30:25] Speaker 02:
You're into borrowed time here a little bit, so why don't you just wrap up.

[00:30:29] Speaker 02:
I was just going to say, with regard to the alleged delay cutting against irreparable harm, again, the district court did not use that as a basis for denying the motion for preliminary injunction, and it was not raised on cross-appeal.

[00:30:41] Speaker 02:
Thank you, Your Honors.

[00:30:42] Speaker 01:
Thank you.

[00:30:43] Speaker 01:
We thank both counsel for the briefing and argument.

[00:30:45] Speaker 01:
This case is submitted.

[00:30:47] Speaker 01:
We want to again thank Chief Judge Morris for being with us today.

[00:30:50] Speaker 01:
That concludes our week here in San Francisco and we are adjourned.