[00:00:00] Speaker 02:
Our next case is UATP IP LLC, UATP Management LLC versus Kangaroo LLC FA.

[00:00:13] Speaker 02:
And Mr. Councilor Knight, you have reserved three minutes of time for rebuttal, correct?

[00:00:19] Speaker 02:
Correct.

[00:00:20] Speaker 02:
Three minutes, okay.

[00:00:22] Speaker 02:
You may proceed.

[00:00:23] Speaker 00:
May it please the court, Steve Knight on behalf of the appellant Kangaroo LLC.

[00:00:28] Speaker 00:
This is a trademark and trade dress, I'm sorry, a patent and trade dress infringement lawsuit that comes to this court by way of an interlocutory appeal of a preliminary injunction ruling.

[00:00:40] Speaker 00:
Kangaroo asks this court to reverse the preliminary injunction ruling because Urban Air did not establish a likelihood of success on the merits or that without the preliminary injunction, it is likely to suffer imminent and

[00:00:52] Speaker 00:
and irreparable harm.

[00:00:56] Speaker 00:
I'd like to start by first talking about the patent claim and to sort of set the table with respect to that claim.

[00:01:03] Speaker 04:
I'm just curious, is Kangaroo currently operating its adventure park?

[00:01:08] Speaker 00:
Kangaroo is operating its adventure park as best as it can.

[00:01:13] Speaker 00:
I mean, it made substantial changes.

[00:01:16] Speaker 00:
We pointed out those changes in the

[00:01:19] Speaker 02:
Have there been any changes that have been made that are not noted in the question for us?

[00:01:26] Speaker 00:
I am not aware of any additional changes that are not within the record.

[00:01:31] Speaker 00:
And I think the most recent set of changes are in the post-injunction filing that we did ask the court to reconsider in the court.

[00:01:39] Speaker 00:
And the primary problem here is that- I'm sorry, just so I understand.

[00:01:43] Speaker 03:
My understanding is there was a-

[00:01:48] Speaker 03:
unruled on post preliminary injunction motion I think from you to vacate it because of post preliminary injunction changes.

[00:01:59] Speaker 00:
And changes that may not have appeared from the original record.

[00:02:01] Speaker 03:
Right and I assume that

[00:02:05] Speaker 03:
in the record of the district court attached to your post-preliminary injunction motion, those changes are identified.

[00:02:14] Speaker 03:
Are those changes identified in here?

[00:02:18] Speaker 00:
They are identified in this record.

[00:02:21] Speaker 00:
What you'll see from the record is after the preliminary... I'm sorry.

[00:02:24] Speaker 03:
In this record, you mean in the

[00:02:26] Speaker 03:
record before us in the Court of Appeals.

[00:02:28] Speaker 00:
Yes, Your Honor, and the appendix.

[00:02:30] Speaker 00:
After the preliminary injunction was issued and after we filed the notice of appeal, we went back and we filed a motion to reconsider.

[00:02:36] Speaker 00:
And we attached an affidavit of Stanley Tang, who's the owner of the son, sorry, the owner's son, who has signed an affidavit that detailed the changes.

[00:02:48] Speaker 00:
And they attached a lot of the photographs that demonstrate the changes in the color scheme, as well as structural changes.

[00:02:55] Speaker 00:
Going back to the first part of the claim, the patent infringement claim, I wanted to sort of set the table because I think what's important to point out by way of background here is that it does not appear anywhere in this record that AEG, who was the original franchisee of Urban Air, was subject to any sort of a license agreement or any other restriction on its use of this adventure hub that's in the Laredo facility.

[00:03:21] Speaker 00:
In fact,

[00:03:22] Speaker 02:
But as the French had to see, they were obligated into the terms of the contract.

[00:03:27] Speaker 02:
to certain IP obligations.

[00:03:29] Speaker 00:
Is that right?

[00:03:30] Speaker 00:
There were certain IP obligations, but nothing with respect to this Adventure Hub.

[00:03:35] Speaker 00:
And what I would point out is that the building and the Adventure Hub, which is essentially a fixture within the building, was owned by Global Star, which was AEG's landlord.

[00:03:49] Speaker 00:
So Global Star owned the building and the equipment, including the Adventure Hub.

[00:03:54] Speaker 00:
When Urban Air canceled the franchise with AEG, it was after COVID hit, AEG couldn't keep up with the expenses.

[00:04:02] Speaker 00:
Urban Air sent AEG a very detailed letter about de-branding.

[00:04:07] Speaker 00:
And that letter is at 722 in the appendix.

[00:04:11] Speaker 00:
That is a very important letter for this court to consider, because it goes through a laundry list of things that Urban Air wants AEG to do to disassociate itself from Urban Air.

[00:04:22] Speaker 00:
And what's notably absent from anything in that letter is a demand to cease operations of any of the equipment inside.

[00:04:30] Speaker 00:
In fact, just the opposite.

[00:04:32] Speaker 00:
All that they say with respect to the equipment is, we would like for you to remove any indicia of Urban Air's name from the equipment, implicitly recognizing that this equipment might be used and operated by somebody else in the future.

[00:04:44] Speaker 00:
Now, after they cancelled the franchise,

[00:04:49] Speaker 00:
Global Star and AEG went to Urban Air and said, look, we have this equipment.

[00:04:54] Speaker 00:
We have the building.

[00:04:56] Speaker 00:
If you'd like to continue to operate in the Laredo market, we give you the opportunity to take over the lease.

[00:05:02] Speaker 00:
Buy the equipment from us.

[00:05:04] Speaker 02:
We're familiar with a lot of these facts.

[00:05:06] Speaker 02:
I think you better get to your point.

[00:05:11] Speaker 00:
So with respect to the, so we think that the claim, this trademark, this patent infringement claim is dubious from the start, but we maintain that the district court erred in entering this preliminary injunction because they didn't establish the likelihood of successful numerics.

[00:05:28] Speaker 04:
Isn't there the problem here that the district court never went through any analysis of any patent claim and comparing the limitations of that patent claim to the features of Kangaroo's Adventure Park?

[00:05:42] Speaker 00:
That's exactly right.

[00:05:42] Speaker 00:
And that's even the second problem.

[00:05:44] Speaker 00:
The first problem is that the district court had already entered an order recognizing that it's dubious or questionable, a fact issue, as to whether they even own the patent.

[00:05:53] Speaker 00:
Because the only thing that was assigned to Urban Air was a provisional application.

[00:05:58] Speaker 00:
The patent that was subsequently issued adds additional matters, which were the subject of claims 6, 10, and 12.

[00:06:04] Speaker 00:
So the court had recognized that the factors knew if they even have rights under the patent, yet it issued the preliminary injunction.

[00:06:10] Speaker 00:
Problem one.

[00:06:11] Speaker 00:
Problem two, Judge, is what you just pointed out.

[00:06:14] Speaker 02:
Here, this court has recognized, particularly in the... At that point, were you arguing that they had no ownership in the patent, no interest in the patent?

[00:06:22] Speaker 00:
Say it again, Judge.

[00:06:22] Speaker 02:
At that point, were you arguing before the court that there was no ownership or no interest in the patent?

[00:06:29] Speaker 00:
Yes.

[00:06:29] Speaker 00:
In fact, that issue was the subject of a motion to dismiss their lawsuit.

[00:06:33] Speaker 00:
They went through what the provisional application was for.

[00:06:37] Speaker 00:
It lacked certain diagrams that are included in the actual patent application.

[00:06:41] Speaker 00:
All of that was laid out.

[00:06:43] Speaker 00:
And the court actually entered a ruling saying,

[00:06:45] Speaker 00:
I'm going to deny the dismissal.

[00:06:47] Speaker 00:
However, I implicitly recognize that it's a fact issue whether they have an interest in this patent.

[00:06:54] Speaker 00:
And that fact issue never got resolved before the preliminary injunction was issued.

[00:06:58] Speaker 00:
And what I would point out, and this is related to what the court said during the preliminary injunction hearing, when Urban Air offered the patent into evidence, the judge said, OK, that's admitted, but not validated.

[00:07:10] Speaker 00:
It's never been validated.

[00:07:12] Speaker 03:
Did the district court say that it seemed

[00:07:15] Speaker 03:
likely that the UATP would establish its ownership?

[00:07:22] Speaker 00:
In the order, the court said it did address that.

[00:07:27] Speaker 03:
Which order?

[00:07:28] Speaker 00:
In the preliminary injunction order.

[00:07:29] Speaker 00:
It did make a comment that you're correct.

[00:07:32] Speaker 00:
But I dispute the rationale.

[00:07:34] Speaker 03:
What the court said is because the assignment language said that they would carry through from a provisional to what issued from the provisional.

[00:07:43] Speaker 03:
They usually shorten it.

[00:07:44] Speaker 00:
That would be my provision, is that you're entitled to all rights and interests associated with provisional application.

[00:07:49] Speaker 00:
The court sort of construed that very broadly to say, well, maybe that means the subsequent problem.

[00:07:53] Speaker 00:
Right.

[00:07:54] Speaker 03:
But do you disagree with the idea that in the preliminary injunction process,

[00:07:59] Speaker 03:
All that would be necessary, even on ownership, is a likelihood of success on it.

[00:08:04] Speaker 00:
That is the standard.

[00:08:05] Speaker 00:
But I dispute that there is a likelihood of success on the merits on that issue, because of the language of the assignment is limited to what was assigned in the provisional application.

[00:08:14] Speaker 03:
But then if one gets beyond that to what you said is the second problem, the point Judge Chen made.

[00:08:20] Speaker 03:
Right.

[00:08:21] Speaker 00:
That's the failure to do a claims construction, which is what is so important.

[00:08:26] Speaker 03:
Not just the failure to do a claims construction.

[00:08:28] Speaker 03:
the failure to look at the patent, identify the elements, map the elements onto the accused thing, decide what claim constructions are needed and which ones aren't.

[00:08:41] Speaker 03:
None of that is here, right?

[00:08:42] Speaker 00:
None of that was done.

[00:08:43] Speaker 00:
There is no expert testimony.

[00:08:45] Speaker 00:
The record is bare on that.

[00:08:47] Speaker 00:
And what is so important in this case is that

[00:08:49] Speaker 00:
That process was necessary here.

[00:08:52] Speaker 00:
According to Urban Air, the patented characteristic, what they argue, is that their device has a zip line, a ropes course, and a soft playground course, which they say is combined in a unique and technical manner so it becomes one continuous hub of activity.

[00:09:09] Speaker 00:
The problem, though, is that the patent that was issued says nothing about a soft playground course at all.

[00:09:15] Speaker 00:
It talks about an obstacle course, which is notably absent from Kangaroo's facility.

[00:09:21] Speaker 00:
So even if you have worked to compare the patent with what Kangaroo is operating on its face, they don't match up.

[00:09:29] Speaker 00:
Beyond that, the patent has these very complicated diagrams and very complicated.

[00:09:34] Speaker 02:
If we were to send this back solely on the infringement finding on the court,

[00:09:39] Speaker 02:
Does that completely undo the rest of the case?

[00:09:48] Speaker 00:
They do have a trade dress.

[00:09:50] Speaker 00:
I think if you were to send it back, clearly that would affect any decision by the district court with respect to the operation of this adventure hub.

[00:10:00] Speaker 00:
Their trade dress claim, I think, is somewhat broader than just the adventure hub.

[00:10:06] Speaker 00:
It's the look of other gadgets inside, other play equipment, and things like that inside.

[00:10:12] Speaker 00:
I'll turn and address the treatment.

[00:10:15] Speaker 02:
Let me ask you this other question.

[00:10:16] Speaker 02:
I think I know the answer.

[00:10:18] Speaker 02:
I just want to make sure.

[00:10:21] Speaker 02:
Have you requested that we, if we send it back, that it go to a different judge?

[00:10:27] Speaker 00:
I think that a different judge has already been appointed.

[00:10:33] Speaker 00:
And that's because I believe Judge Hughes may have taken senior status in the interim.

[00:10:38] Speaker 00:
I would have to verify that.

[00:10:40] Speaker 04:
Next housekeeping question.

[00:10:42] Speaker 04:
If we reverse and send this back, does your appeal about the bond get mooted?

[00:10:49] Speaker 00:
I think that that would probably move, but I would ask that the court say if there's any further preliminary injunction that that rule has to be complied with.

[00:10:58] Speaker 00:
The district court didn't do it.

[00:11:00] Speaker 00:
I know that they argue that the court has discretion to set a zero bond, but the court didn't analyze that at all.

[00:11:04] Speaker 00:
It's just simply your silence.

[00:11:06] Speaker 00:
And I think that in a situation like this, that would have to be set.

[00:11:10] Speaker 00:
With respect to the trade dress portion of this preliminary injunction, what I would like to say is that the District Court seems to have faced its decision that they're likely to succeed on the merits of this in two respects.

[00:11:24] Speaker 00:
First, they talk a lot about a trade dress interest in play equipment, in attraction structures, and also the color scheme that they have.

[00:11:33] Speaker 00:
Well, as this court knows, the part of this that deals with the play equipment and the structures, these are functional items that are not subject to the court.

[00:11:40] Speaker 04:
So I guess problem number one is the district court never reached a conclusion and provided an explanation for why the asserted trade dress is non-functional, right?

[00:11:49] Speaker 04:
Correct.

[00:11:49] Speaker 04:
And then the second problem is the district court never went through any analysis to reach a conclusion as to whether the asserted trade dress has acquired secondary meaning or is inherently distinctive.

[00:12:01] Speaker 00:
Correct.

[00:12:01] Speaker 04:
And then the third problem would be that the district court never actually did a full analysis on whether there'd be a likelihood of confusion over

[00:12:12] Speaker 04:
whatever is inside Kangaroo's Adventure Park and the asserted trade dress.

[00:12:16] Speaker 00:
Not only didn't do a full analysis, but to the extent the court analyzed it at all, based on the evidence that they presented, which was just a couple of social media posts, that when Kangaroo opened their business.

[00:12:26] Speaker 03:
Right.

[00:12:27] Speaker 03:
Those are clearly not enough to establish secondary meaning.

[00:12:30] Speaker 03:
You're pushing on an open door.

[00:12:32] Speaker 00:
That's not enough to establish secondary meaning, nor is it enough to establish any sort of confusion.

[00:12:37] Speaker 00:
If anything, it establishes the lack of confusion, because all of those posts said it's a different company.

[00:12:43] Speaker 00:
They've got a different pricing scheme.

[00:12:44] Speaker 00:
They've got different food.

[00:12:45] Speaker 00:
They knew it was not urban anger.

[00:12:47] Speaker 04:
Here's another housekeeping question.

[00:12:48] Speaker 04:
How close are the parties to actually settling this matter and resolving all disputes?

[00:12:53] Speaker 00:
So this is skirting outside of the record and also a little bit outside of my comfort zone to know this because I'm not handling it in the trial court.

[00:13:00] Speaker 00:
But what I had heard on that front was that they were getting close.

[00:13:06] Speaker 00:
I believe that Urban Air was looking at trying to find maybe a different franchise person and incentivizing us to get out of it.

[00:13:14] Speaker 00:
My understanding is that they uncovered problems with the building, which is around the time that whole issue.

[00:13:20] Speaker 02:
None of that's in the record.

[00:13:22] Speaker 00:
That's beyond the record.

[00:13:23] Speaker 02:
So during your rebuttal time, do you want to reserve that?

[00:13:25] Speaker 02:
I'd like to reserve it.

[00:13:26] Speaker 02:
Okay.

[00:13:27] Speaker 02:
Let's hear from the other side.

[00:13:33] Speaker 02:
We have a big hill of conversation.

[00:13:39] Speaker 01:
May it please the Court, Your Honor.

[00:13:40] Speaker 01:
My name is Chris Hanslick.

[00:13:41] Speaker 01:
I represent the APOLEE, UATP, the entities.

[00:13:45] Speaker 01:
I may refer to them as Urban Air, because that's the urban air trampoline part that is actually operating.

[00:13:50] Speaker 01:
Appreciate your comment.

[00:13:54] Speaker 01:
I actually

[00:13:55] Speaker 01:
At this stage of the preliminary injunction, we do believe that there was sufficient evidence presented to the trial court to affirm for this court to affirm the preliminary injunction.

[00:14:06] Speaker 01:
As you've heard, it's a substantial likelihood of success.

[00:14:09] Speaker 02:
Let's reverse on the infringement findings of the preliminary report.

[00:14:14] Speaker 02:
What does that do to irreparable harm in preliminary injunction?

[00:14:18] Speaker 01:
On the irreparable harm, there are still findings of irreparable harm in this order where

[00:14:23] Speaker 01:
What was the evidence presented were comparisons of the attractions when it was under-franchised versus as is operating by Kangaroo to show the substantial similarities.

[00:14:34] Speaker 01:
And there is case law to show that.

[00:14:36] Speaker 02:
So there would be trade dress.

[00:14:38] Speaker 01:
That's the only thing.

[00:14:39] Speaker 01:
Yes, Your Honor.

[00:14:40] Speaker 01:
So the trade dress.

[00:14:40] Speaker 01:
So if you reversed on patent, we would still be successful.

[00:14:43] Speaker 01:
And then the court addresses both trade dress and patent.

[00:14:45] Speaker 01:
So the injunction would still be stand on trade dress for that purpose alone.

[00:14:50] Speaker 01:
And as you've heard, you know,

[00:14:52] Speaker 01:
The injunction is still in place.

[00:14:54] Speaker 01:
There is still activity.

[00:14:56] Speaker 02:
We think there could still be... If we were to reverse on trade dress as well, what does that do to your case?

[00:15:04] Speaker 01:
If I understand your question, if you reverse on both patent and trade dress or just trade dress?

[00:15:09] Speaker 01:
Both.

[00:15:10] Speaker 01:
On both, if you reverse on the idea of substantial likelihood of success on both patent and trade dress, then the injunction, the current order would not hold.

[00:15:19] Speaker 01:
We'd have to go back.

[00:15:21] Speaker 01:
I guess we'd have the opportunity to have another injunction hearing and to answer Judge Chen's question on housekeeping.

[00:15:27] Speaker 01:
We are now in front of Judge Drew Tipton in the Southern District.

[00:15:32] Speaker 01:
Okay.

[00:15:33] Speaker 01:
So, Howard, if I can turn to the trade dress argument, the trade dress that Urban Air has established deals with the colors that it uses, neon orange, yellow, urban air, lime green, and cosmic dust blue.

[00:15:49] Speaker 01:
And I didn't come up with those names.

[00:15:53] Speaker 01:
along with the layout, the attractions that are offered, and the combination of all those elements together to establish a trade dress.

[00:15:59] Speaker 01:
With this, courts have recognized, such as the Two Pesos, Taco Cabana case, that that overall atmosphere, look and feel is sufficient to establish trade dress.

[00:16:09] Speaker 01:
While the order that we're dealing with on pages one through three of the record doesn't go through a detailed analysis, the court does

[00:16:17] Speaker 01:
mention and address the fact that evidence was presented.

[00:16:21] Speaker 01:
And under an abuse of discretion standard, this court should give deference to the trial court that sufficient evidence was found and considered in making his ruling.

[00:16:30] Speaker 03:
So let me just ask you, I was confused about

[00:16:35] Speaker 03:
What aspects of this list of colors is the assertive trade dress?

[00:16:43] Speaker 03:
I thought I understood the preliminary injunction to preclude kangaroo from using each and every one, each one of the itemized colors.

[00:16:54] Speaker 03:
Is that what you understand it to be or is it to use them all collectively?

[00:17:00] Speaker 03:
so that if it just stopped with whatever that blue was that you mentioned, then you'd no longer have to be using that trade vessel.

[00:17:10] Speaker 03:
Is it each one or only the set as a whole?

[00:17:14] Speaker 01:
I believe the order as written, Your Honor, talks in terms of using

[00:17:19] Speaker 01:
enjoyed from using all of those colors in its facilities in the combination.

[00:17:23] Speaker 01:
It doesn't use the word combination.

[00:17:24] Speaker 01:
It just simply says from using in the list of the colors in the facility, as well as in social media posts.

[00:17:32] Speaker 03:
My question is, what do you understand that to me?

[00:17:35] Speaker 03:
If I say, don't do all these things, I have retained the precise ambiguity that I'm trying to get beyond.

[00:17:44] Speaker 03:
Does that mean you can't use any of them?

[00:17:46] Speaker 03:
Or does that mean you can't use the collection

[00:17:50] Speaker 03:
all of them together, that you can use if you can use any subset you want.

[00:17:54] Speaker 01:
I think it would be a fact-intensive inquiry to say, depending on the removal... It's your trade dress.

[00:18:01] Speaker 03:
What are you asserting the trade dress to be?

[00:18:03] Speaker 01:
I think it's a combination of the use of all those colors.

[00:18:05] Speaker 01:
So if they were to remove one, but it didn't change the overall look and feel, similar to the Taco Cabana and Tupesco, if it didn't change that, then it would still be a violation of our trade dress.

[00:18:15] Speaker 01:
If they hypothetically

[00:18:17] Speaker 01:
removed all but just one color, maybe that would be enough to not have the same look and feel.

[00:18:23] Speaker 03:
But that's the key of the inquiry is that.

[00:18:25] Speaker 03:
Do you agree that in figuring out what the protected trade dress is under a look and feel that you have to, in particular, look at the, I think the phrase is, attraction structures, the actual structures in there.

[00:18:40] Speaker 03:
and figure out which aspects of those are functional.

[00:18:45] Speaker 03:
Most of them, most of the aspects will be functional.

[00:18:48] Speaker 03:
Most of the look here is just surface appearance, right?

[00:18:53] Speaker 03:
And you have to define what the trade dress is by eliminating all of that stuff and then defining it in a way that's precise enough to comport with Rule 65 if you're doing an adjunction, but also just for trade dress liability.

[00:19:08] Speaker 01:
I do think at the final trial, that is a requirement.

[00:19:12] Speaker 01:
But I believe at this stage, and functional elements can be part of a trade dress, as we have here.

[00:19:17] Speaker 01:
There are some things that are functional and non-functional in courts.

[00:19:20] Speaker 03:
The non-functional aspects of them.

[00:19:22] Speaker 01:
Pardon?

[00:19:22] Speaker 03:
The non-functional aspects of them.

[00:19:25] Speaker 01:
Yes.

[00:19:25] Speaker 01:
And the attractions we have aren't

[00:19:30] Speaker 01:
They are unique to ours.

[00:19:31] Speaker 01:
Some are unique.

[00:19:32] Speaker 01:
Some are similar to other competitors.

[00:19:35] Speaker 01:
But the point being, there are other ways to configure a tripling park and not infringe upon the elements that we have in ours, the combination, the attractions, the colors, and the way it's all laid out, which has become going into inherited distinctiveness.

[00:19:54] Speaker 01:
It has acquired a look and feel that is known for their Urban Air brand.

[00:19:58] Speaker 01:
And we've seen that in social media posts where, in fact, in the record,

[00:20:02] Speaker 01:
The comment was, it's literally urban air.

[00:20:05] Speaker 04:
Well, doesn't the district court need to go through those findings and make that analysis in order for it to grant a valid preliminary injunction?

[00:20:13] Speaker 01:
I believe the court, while maybe not as detailed as some orders have been, did do that, where it considered the evidence.

[00:20:21] Speaker 01:
It states that the evidence was presented by urban air.

[00:20:24] Speaker 04:
And then something clear enough to permit meaningful appellate review, I guess.

[00:20:30] Speaker 04:
I didn't see anywhere where it said, OK, I've looked at this asserted trade dress, and here's why I find it to be non-functional.

[00:20:39] Speaker 04:
Here's also why I find that it has, in fact, acquired secondary meaning.

[00:20:43] Speaker 04:
Or it's likely that that is the outcome, or alternatively inherently distinctive.

[00:20:48] Speaker 04:
I didn't see the district court go through any of that analysis.

[00:20:52] Speaker 04:
Because it did not.

[00:20:53] Speaker 04:
I mean, at least it is writing in the order.

[00:20:57] Speaker 04:
Isn't that a defect in the district court's order?

[00:21:00] Speaker 01:
I don't believe it's a fatal defect, Your Honor.

[00:21:02] Speaker 01:
I mean, it is that those types of words are not contained in the order, but I do believe the judge's reference in the abuse of discretion standard to give deference to the trial court who heard this evidence and great deference to weighing that evidence as well as the credibility of the witnesses, there is sufficient

[00:21:17] Speaker 01:
language in this order to give the discretion to the trial court that those considerations were taken at this preliminary stage sufficient to uphold this order.

[00:21:28] Speaker 04:
So we should assume that the district court essentially adopted your arguments in your brief about non-functionality, about secondary meaning, et cetera.

[00:21:37] Speaker 04:
Or in our distinctiveness, I can't remember which one.

[00:21:40] Speaker 04:
You pushed both, I think.

[00:21:41] Speaker 01:
Yes, Your Honor, we did.

[00:21:42] Speaker 01:
And yes, that is true because there's reference both to the evidence and he considers and states the counter evidence that Kangaroo brought to the table that day, but said it was insufficient to overcome, as an example, the presumption of irreparable harm on page three of the order.

[00:21:58] Speaker 01:
So there's enough.

[00:22:00] Speaker 01:
While there could be more, unquestionably,

[00:22:02] Speaker 01:
and maybe always could be more, there is sufficient enough at this stage to uphold a preliminary injunction given that the trial courts get the deference in weighing the evidence and considering whether it meets the standards.

[00:22:14] Speaker 04:
I believe it's your view that your trade dress is product packaging and not product design.

[00:22:19] Speaker 04:
Is that right?

[00:22:20] Speaker 04:
I'm sorry.

[00:22:20] Speaker 04:
I didn't hear the first part of that.

[00:22:22] Speaker 04:
I believe it's your position that your asserted trade dress amounts to product packaging and not product design.

[00:22:30] Speaker 04:
Is that correct?

[00:22:31] Speaker 01:
That is correct, Your Honor.

[00:22:32] Speaker 04:
If it's product packaging, then what would you think is your actual product?

[00:22:37] Speaker 01:
The product is the services of the experience in the coming in to be able to use the park in this configuration that it is.

[00:22:46] Speaker 04:
The product isn't the attractions?

[00:22:48] Speaker 01:
I think it's that and the way they're assembled and put together.

[00:22:52] Speaker 01:
So the attractions plus the way they're put together.

[00:22:54] Speaker 01:
The hub, the trampolines, the ninja warrior.

[00:22:58] Speaker 01:
Isn't that your assertive trade dress?

[00:23:00] Speaker 04:
The layout, the attractions, the configuration?

[00:23:05] Speaker 01:
Yes, that is the trade dress.

[00:23:07] Speaker 01:
I guess the product itself is the actual trampolines that the kids play on the ropes course.

[00:23:15] Speaker 01:
But it's the assembly, that's the product, the packaging is how it's assembled, the color schemes used, the atmosphere that's created, and the overall experience.

[00:23:25] Speaker 01:
Which we think puts us into the context of the 2 pesos taco cabana case of product packaging, which does not require secondary meaning, as this course aware.

[00:23:34] Speaker 04:
As far as you know, this

[00:23:36] Speaker 04:
matter isn't imminently about to settle, right?

[00:23:39] Speaker 04:
I mean, we overhear the court has to write an opinion here.

[00:23:43] Speaker 04:
This isn't going to settle tomorrow, is it?

[00:23:46] Speaker 04:
It is not going to settle tomorrow, Your Honor.

[00:23:51] Speaker 01:
So we talked about the trade dress.

[00:23:54] Speaker 01:
On the patent side,

[00:23:57] Speaker 01:
The appellant's position is simply that claim construction was required.

[00:24:02] Speaker 01:
We differ, and we've seen that in our paper, where in the Chamberlain case, the courts said in almost every case.

[00:24:08] Speaker 01:
And the key distinction is in every case cited by appellant, there was dispute as to language within the claim itself.

[00:24:15] Speaker 04:
Which patent claim are you asserting in the patent?

[00:24:19] Speaker 04:
the uh... i didn't see you identify a particular pat mcclain i don't believe there's a specific claim and this record that you'll see this record is any dispute by kangaroo the appellant of any language in the claim well they said they segregated their central hub away from the zip line and ropes course and so it's no longer one continuous play hub area and so therefore it

[00:24:46] Speaker 04:
It's not in communication as recited in coin one with these elevated equipment structures.

[00:24:53] Speaker 01:
Well, the district court found that they didn't present sufficient evidence of those changes.

[00:24:58] Speaker 01:
Right.

[00:24:58] Speaker 04:
And whose burden of proof, I guess, is... We believe it's theirs to show, again, they weren't... It's your burden of proof to show a likelihood of success that their kangaroo adventure park is infringing

[00:25:11] Speaker 04:
one claim, right?

[00:25:13] Speaker 01:
Well, we took the position that by continuing to use the hub, which is protected by patent without proper permission.

[00:25:22] Speaker 02:
You have to map, you have to map your claims to the and that hasn't happened here.

[00:25:31] Speaker 02:
I wouldn't even see the claim that's been identified.

[00:25:36] Speaker 02:
It's going to be really hard for you to argue effectively that

[00:25:39] Speaker 02:
that there's infringement at this point in time, maybe later on, you know, as the case progresses.

[00:25:46] Speaker 02:
But right now, you can't even identify to us which claim you're asserting.

[00:25:52] Speaker 01:
It's the overall use without permission of the entire claim, though.

[00:25:56] Speaker 01:
It would be all the claims, Your Honor, because, again, there's no dispute, as in other cases, and the two you heard this morning before you, in the cases that have been reported, where there's a dispute as to specific language in the claim, which requires the court to do a construction of those claims.

[00:26:12] Speaker 02:
We're not doing that here.

[00:26:15] Speaker 02:
But here, we don't even know which claim we're addressing.

[00:26:19] Speaker 01:
We think they waived.

[00:26:20] Speaker 01:
They didn't make this argument in the lower court.

[00:26:22] Speaker 01:
So we think there's a waiver argument.

[00:26:23] Speaker 01:
They never made an issue that there should have been a claim construction because, again, they testified at the end.

[00:26:30] Speaker 02:
But they're arguing that the preliminary injunction and the branch of the preliminary injunction that deals with irreparable harm, that the court erred in that.

[00:26:40] Speaker 02:
With respect to at least patent infringement,

[00:26:44] Speaker 02:
If he can't show, if he hasn't asserted a claim, it can't be an infringement.

[00:26:51] Speaker 02:
So it doesn't matter whether you have some claim construction or not.

[00:26:55] Speaker 02:
I mean, before you even have claim construction, you've got to identify what claim you're going to construe.

[00:27:01] Speaker 02:
We don't have that here.

[00:27:03] Speaker 01:
We have, again, what we have is that they're using a patented item, the hub, that we own without authorized use.

[00:27:12] Speaker 01:
And there are cases that have said you don't have to have a claim construction in order to uphold an preliminary injunction.

[00:27:19] Speaker 01:
It's their burden to show that they've made some type of change that would take it out of an infringing activity.

[00:27:27] Speaker 04:
The court's irreparable harm analysis seemed to be devoted exclusively to the trade dress matter.

[00:27:33] Speaker 04:
And I didn't see it separately analyzing irreparable harm for any patent infringement.

[00:27:40] Speaker 04:
Is that right?

[00:27:41] Speaker 04:
I think that's a fair reading, Your Honor.

[00:27:44] Speaker 04:
So we don't have a finding on irreparable harm by the history court as to the patent infringement question?

[00:27:49] Speaker 01:
Not that I can find in the three pages of the order.

[00:27:52] Speaker 01:
Again, but that would not be fatal to the preliminary injunction as long as it's upheld on the trade dress claim.

[00:27:59] Speaker 01:
Because all we need is one, as this court's well aware.

[00:28:01] Speaker 01:
It doesn't have to be both.

[00:28:02] Speaker 01:
So if you were to find that it's insufficient as to the patent, not to the trade dress, the preliminary injunction is still valid and should be enforced.

[00:28:11] Speaker 01:
Thank you for your time, Ron.

[00:28:15] Speaker 02:
Thank you.

[00:28:16] Speaker 02:
Mr. Knight, we have a little bit of time left.

[00:28:18] Speaker 02:
You have two minutes.

[00:28:19] Speaker 00:
OK.

[00:28:20] Speaker 00:
In that two minutes, I just want to address a couple of matters, starting with the irreparable harm.

[00:28:27] Speaker 00:
What the district court said on that point was, questions by customers about the new trampoline park that suggests similarities between urban air and kangaroo

[00:28:36] Speaker 00:
do not necessarily imply confusion.

[00:28:38] Speaker 00:
It does, however, evidence similarities that harm urban air.

[00:28:42] Speaker 00:
And I submit that even that finding is deficient, because the standard, as this court knows, is imminent and irreparable harm.

[00:28:49] Speaker 00:
That's the first problem.

[00:28:50] Speaker 00:
The second problem is that there is absolutely no evidence of imminent and irreparable harm.

[00:28:55] Speaker 00:
There's no data submitted in evidence about them having lost a single penny in sales because of the operation of this kangaroo facility.

[00:29:04] Speaker 00:
There's no reputational harm.

[00:29:06] Speaker 00:
There's no evidence that anybody frequented the kangaroo facility formed a belief that it was an urban air facility, had a bad experience, and left.

[00:29:14] Speaker 04:
I believe the district court cited a trademark statutory section about a rebuttable presumption.

[00:29:20] Speaker 00:
Well, if we're getting into the rebuttable presumption, then we get into the delay here.

[00:29:26] Speaker 00:
Because we've cited plenty of cases.

[00:29:28] Speaker 03:
Well, no, no.

[00:29:29] Speaker 03:
Just put aside delay.

[00:29:31] Speaker 03:
1116A addresses both permanent injunctions and preliminary injunctions.

[00:29:37] Speaker 03:
And it says, I'm going to say,

[00:29:39] Speaker 03:
misremembering that a preliminary injunction, a likelihood of success, gives rise to a presumption that a preliminary injunction should issue or something like that.

[00:29:50] Speaker 00:
But you can rebut that presumption.

[00:29:52] Speaker 00:
And one way to rebut a presumption that somebody's going to suffer irreparable harm, this high degree of harm, is by looking at the record and to see what did they do about it.

[00:30:01] Speaker 00:
Here, they discovered the existence of kangaroo, and they waited almost a full year

[00:30:07] Speaker 00:
Before they acquire the hearing on their preliminary injunction request.

[00:30:12] Speaker 00:
There's no imminent harm when somebody waits a year So that we've cited case law that says if you wait a few months the rebuttal the presumption is rebutted They're not entitled to it anymore