morning case for argument this morning is thirteen one five three five in re the new bridge cutlery company mr grateful whenever you're ready and its headquarters is a new bridge ireland a town of approx with twenty thousand people in county killed there in ireland the seventeenth largest municipality in the country newburgh cutlery sought to register it  in terms of the burden of showing primary significance well in terms of the burden to show that that it was it primarily geographic or mental well first of all i think that the piece that examiner should have dealt with the unrefuted evidence that the term new bridge in and of itself is not primarily geographic in fact there are some twenty one other newbridge towns and villages in england in ireland and elsewhere in the world there are numerous companies here in the united states and abroad which use the term newburgh new bridge frank there's a new bridge nursing home and that's to see if there are new bridge consulting companies there's just a raft of new bridges direct pages tonight d m s movement and another selfless dalgleish that there can't be a primary significance right that's correct but it does establish that in the minds of the public they will not necessarily associate the term new bridge with a particular first with you graphic location because it's sort of generic and it's used all over the place for all sorts of things and more and more over the fact that there are twenty one new bridges means that they would have to associate the term not all of the geographic location but with that particular new bridge which is in our view at a minimum remote and obscure in ireland so there are you know there are several steps that have to be taken before one could conclude that the new demonstrate through the relevant parts in public that being the public in the united states which purchases housewares which newburgh new bridge sells that that segment of population a all of them would conclude upon hearing the term new bridge cutlery or new bridge silver newbert home i'm sorry that there was an awareness that these products came from newbridge parliament and i don't think that they're in the raft of internet chat you feel i mean the campaign we don't require them to do a test to do a survey in all cases so he's suggesting that the only thing he suggesting that would have been necessary because of all of the other evidence you here with a population of either fifty or eighty thousand people ashburn virginia depending on the population and of which internet site you look at and there are the teeth to be found that aspirant virginia thirty miles from here was remote delivery of my new show with respect to berkeley any place on earth you can make an argument either way all the time and there are no there's no basis in these close calls for doing one or the isn't there isn't a real question whether the consumer of this type of goods will understand whether this market suggests that good these goods come from newbridge the the term primarily as i understand it is the term that gives rise to the issue of remote risk you are or whether it is as well i don't understand that at all i mean something can be primarily recognizable to the general let me ask you this is what i'm getting at do they have to understand that it is from a specific new bridge or do they just have to understand that this market is indicating that these goods come from a geographic location called a new bridge i think they would have to understand this for a specific new bridge and it does based on the case i take i don't know that any cases are addressed to put it doesn't make sense to me that it could mean well  somebody if somebody looks at a mark and it that their main understanding of this is that this is interpreting this is conveying the notion that these goods come from a specific place from a place from a geographic place and they leave out specific from a geographic place why isn't that primarily graphically descriptive from a new bridge do they have to know that it's new bridge ireland or do they just have to recognize that it's a geographic mark i would argue that they would have to know the new bridge arlen because the purpose of this statute is to prevent persons recognizable i mean isn't the purpose of the statute doesn't talk about well known versus obscure it talks about geographically distinct so even if that a really really obscure place that nobody's heard up as long as th in the p t o could come up with substantial evidence showing that an average consumer would understand brown city as to be a place it's a few here and it's obscure nobody's heard of it but they know that it's a place because it has the word city and would that be geographically think it would be just geographically descriptive that's what i mean by the next the next inquiry would be whether it's remote groups q r and if that increase if if and that's just the obscure looking at or to tell americans don't understand it's a geographic marker at all whereas i assume that people would argue that when you look at the word new bridge they understand that to refer to a city called new  well i would argue no more then than someone going to the new bridge banks here in united states would think that it's easy to do bridge new bridge has a lot of connotations and a myriad of meanings which is why for instance the independent living facility in massachusetts called new bridge independent living facility there's a new bridge consulting companies there's you know the word itself doesn't is not primarily geographic i would argue and just as in you know with some there's a company t to trademark hollywood friends and the first wall in the cases you've said there's any doubt as the primary significance of the word hollywood we resolve where they would understand it to well the company itself and conversely jason to hollywood so but but the it's undeniable that hollywood is a geographic location it also has other meanings newbridge is a geographical location it also has probably one of the tests is that we look to see whether the primary significance of the mark is the name of a piece of a place generally known to the american public be played and then of course the question is is to the goods come from that place or do they not come from that place and from that you can just discern whether the question is whether it's primarily to your graphically descriptive or perhaps geographically misses descriptive so i think we're talking about a place not just the name of a city some place it's got to be a place and the question i have here the trouble i'm having with this is because whether there's substantial evidence to evidence in the face of the record as a whole there's not substantial evidence they have introduced a variety of obscure newspaper articles about someone who'd you know being buried in newbridge ireland or who died who was born in newburgh ireland or was going on a study garland maybe ten or fifteen articles over fourteen year period there's a bunch of other websites with at without any evidence that they've ever been accessed by in any significant way the american public that the the g t a b itself in the new video case basically said we're going to like discount websites like wikipedia and the gadgeteer because you know these are not dispositive a what the relevant public knows they're just web sites that are put up there without any reference whether they're accessed by anybody i mean part of the problem i think here and it was wagging one hundred eighty seven this court said it's astounding what you know a nexis search can do to bring up an obscure names of places since one thousand eighty seven and we are way beyond what nexus was capable of that and i'd just ask one quick question which is what is your understanding to you know judge you cited what the statute that what is the policy that drives all up is that exclusively that we don't want to preempt you know three people live in a town and why should you get to use this term for this and taken away from liability that is that's what's driving here kind of a preemption thing if i believe it isn't and you know there was a reference to we could eventually register under two f for acquired use but in order a seventy five year company we have to says anything about the distinction between obscure or not that the policy of the statute is true per the registration of geographically descriptive markets that seems to me that if you have a talented people you still can't register a geographically district a mark of that's held because you might exclude the other or people but i think you could you could if we were to do a no one else to do new bridge home but someone from new bridge could do you know any number of new bridge applications and i think that when you're talking about a  i believe does take into account the remoteness or obscurity of the town and the whether or not it's readily recognizable to the public and whether or not the relevant public would make a good place association with respect to the name so while the issue of preemption is one aspect of it it's not it doesn't override all other sort of practical considerations as to whether or not there really is harm here by not having preemption because the extent no one really identifies the city as a the geographic man at the place where it's remote or obscure or the relevant public doesn't make the association then there's no harm so i you're you're right one aspect of this preemption but it's balanced against these other considerations critically in our case i would argue that we're seventy five year old company from a small town in ireland wanting to come here with some protection for our well established intellectual property primarily in europe we sell up a few things here but nothing of any significance is actually the business decision that we're going to make is there's a big risk coming here with these court i'd like to start with three facts in this case the first is that we know a new bridge is a city in ireland new bridge country is based in that city in ireland and new bridge homes products that they're going to market under that mark come from convey the meaning to the consumer that is whether they meet the consumer would see the market and make the goods place association do you agree that it has to specifically pointed newbridge ireland or dictated just be geographically description  these goods come from a place called new bridge it does not have to specifically point to new bridge ireland if you are making the refusal because you say you're saying a consumer would see the mark and make a good place association really i mean i  say that's a good place association we don't have to say no they know about new york and new york it's a real thing that exists right if that stuff but you're suggesting that even if they're fifteen hundred new bridges and even if there was one in ireland that had two people in it that would be sufficient because the is an association with new bridge has a place in the place people are thinking about it in tampa if there were if there were fifteen hundred new bridges and every time an american consumer saw a new bridge they thought it was a place name then they would be making the goods place association and if the goods actually came from that place we would be able to presume that to eat too is in place and there needs to be a refusal where it gets tricky is when there is a possibility that consumers are not going to know that the consumers are going to get the mark might be obscure that it might be remote and that's when we dig into this deeper level of evidence so we say well because it might be obscure or remote then we want to examine a tree come up with some sort of evidence of an actual not an actual goods place association in the mind of a consumer but evidence that there would be such a good place association and that's when we turn to the evidence in the record that associate this new bridge ireland with their companies and their products that's that second level of evidence that we look to in this case because of the possibility that the term new bridge might not immediately connote the name of a location well let's let's break this a little bit because it seems to me conflating the two prongs that have been set out in the test that's generally applied and the test was recognized by the board and set forth in the opinion we're probably one that is to determine whether the primary significance of the mark is the name of a place generally known to the american public so that's step one there was no good place association at that point so  it isn't it the burden of the patent office at that point to establish that that that the american public generally knows in this case new bridge as the name of a place  its new bridge the city of new bridge not just that it's the name that could be a city in maybe twenty cities around the world if it's that it's that you are the primary significance of the term in that mark is as a geographic describer of the source of those goods just as a geographic i mean anything that is a city called happiness is in any word going to be the name of a city and probably is and your honor that's that's why the patel case went the way it did because there was no evidence of people would even recognize the talent the name of the city the evidence that they went into the clear two types of evidence both work against the first type of evidence they pointed to is that there's lots of new bridges and there's lots of cities and when that evidence suggests i think the assumption that when you see new bridge you think it's a city which means when you see new bridge in connection with good you're going to make the goods place association the more cities name new bridge the more likely it is that you're going to make that wasn't that keep tabs on maleficent i read it look at page five and they say apple could make the argument it's an unknown to the american consumers however and then they go on and on and on not talking about new bridge is just the city talking about how generally know they conclude that it would be generally known defining about new bridge iras and they're not talking about new bridge sounds like the name of the city or that there are several others and who cares which one it is they are talking about their analysis seem to be completely hung dead and the generally known geographical place of great irony for these goods yes because chief judge promised they are giving the applicant a little bit of benefit there and saying in the event even in the event that it's obscure or remote and people wouldn't immediately think newbridge is the name of the town and then make a good place association we will now turn to the evidence that they would actually make a good place for these goods in this instance with that specific town so that you know telling us of the ports that new bridge isn't enough and that we are relying therefore primarily if not exclusively on the fact that new bridge ireland is ysis the evidence that supported that new bridge with a geographic geographically descriptive it wasn't all this large and the people would understand that the word of a place it was all these references to st essentially is found on the internet about drug companies newbridge ireland michael jackson tour a new island some reference to and you can tell me what this is that i don't understand how this is relevant all the columbia that that here or the world which honestly i've never heard of until this case it sounds like it lists basically every location in the world so how could that possibly be relevant evidence of what an average american would understand if it's a comprehensive guide to lead to the notion that just because you can find something on the internet search that the american public could could know that you can find anything on an internet search i did an internet search to find what was roughly a comparable state to the size of ireland which was in the area and then i found what the internet told me was the seventeenth largest city in indiana which what micha walker i'm from ohio the neighboring state i have never heard of mishawaka so the internet stuff doesn't seem to me to be substantial evidence of what an average american would know so if that's what you need then i think your have a problem here your honor if i may i think the internet stuff is the very best evidence of what the average american would know this is not nine hundred eighty seven when judge rich you know was amused at what computer searches can turn on people who don't at the end of the day go to their desktop computer and fired up and log on and do a search people are searching the internet for products on the smartphone in their pocket they are an instantaneous amount of time away from knowledge about new york city and new bridge ireland new bridge cutlery markets their goods on the internet through  result you're going to end up with with no mark that has a graphic meaning at all not just to the average person it's not going to be able to be registered because any person can sit out of the computer a good will deter and they're going to find within maybe not the first ten rich pages but some toys the fact that it's tied to specific location and where we might end up your honor and i think i agree with you that we might end up with fewer obscure places because i would submit there are fewer obscure places because we are all readily connected to the whole world right now that's just how commerce has evolved your view of it is not obscure if they can find it on an internet search rather than knowing it before they go to the search yes there has never been a requirement by this court that comes we have to show the consumers had something in their head when we were affirmed in los theatres the issue there was the evidence once again if your entry that was the sole piece of evidence and in the court specifically spoke to this and the court said you cannot require an agency to hold the american public every time this issue comes up and find out what's in there had you have to go to the whatever evidence they have the evidence in one nine hundred eighty seven the evidence in the past was a gadgeteer the evidence to date is a wiki p d entry now maybe we need to get to the point where you look at all that we keep of spies in iran and it's got a population of seventeen people does that change anything or is just the fact that that information appears on with the p d f position if if that is the evidence and that's not the evidence here but if that is the evidence and based on that evidence or suggestion that the term is remote and obscure and that consumers would not make the goods place association face simply on the mark in connection with those goods because how would any consumer ever know the depth of place in the  kind of first principles which is i mean i understand we've got this case law coming back to the statutory citation to use alluded to and going back to the first argument you were making which surprised me a little bit which is are we just looking  is it you know the government's view that we are just looking at whether or not this is a location or are we really looking at the particular location whether the public would know this is a city anywhere in the universe or whether the public know about this place in iowa in the first instance we are looking at whether or not the public would make a good place association when simply confronted with the mark and if it's a famous place they're likely to make the goods place association if there's some less or something about the question is do we need to look in a little bit deeper is the term maybe remote and obscure to the extent that we need to see if there's actual evidence of a good place association it depends not just on whether or not people know about new bridge ireland or new bridge in general  neither your honor the so see is that it's used in the mark as a description of the source of those good that's always the inquiry in trademark law does the mark describe the source of good or does it describe something this company in newbridge it is famous for well to the extent that we're now speaking about that they're the source of the fame of the town that they put the town on the map things like that that is an entirely fair argument for them to make but they have to make it in the context of a to f registration and if we were at a point where anytime someone used a mark in connection with their goods that described its origin and you could search the internet and figure that out you said well that's a problem because then everything gets refused under two weeks you know what happens is applicants then have to show what they have tried to show up and down just in the wrong context which is the consumers associate newbridge with them they've built new bridge their  very hershey there's a source of the fame with that counts they are totally entitled to do that and if they can do that if they're right they can get the registration they just can't come in and use a term that describes their town accurately and then get a monopoly on the name of the could come back given all the evidence that peta have had before and they have come in and been willing to spend ten million dollars on the survey and went to every shopping mall and made it in the u s and that's people walking by have you ever heard of  if they build an evidentiary record that the centrally demonstrated that there was no substantial evidence because this is a substantial evidence review that supported the board's holding then yes the board could take that sort of evidence they haven't endeavored to do that all they've done is they have found their own obscure maps that don't have their city on it they haven't looked at their own website that has a map with their city on it i mean that's the other thing that's strange about this case as a company they undoubtedly associating themselves with new bridge aren't their website has links to tour guides their website has maps they sell their goods in the united states yes in irish specialty shops they sell their goods on their website they have the name of their town on every single page they have u s dollars there clearly when consumers are confronted with their products they're confronted with them in an environment where they're just as soon fronted with the regional origin of their goods that's what's strange about their position if they are so right that they put that town on the map they can simply get a wrist registration under section two but they cannot get a monopoly on the name of the town and i see that amount of time  to address one of judgments questions and that has to do with the well known is how well known does this have to be that inquiry is not relevant under to eat to its relevant under two three that is if a mark is refused because it's primarily geographically missed descriptive and deceptively that's when we have to get into the showing that not only is it geographically mis descriptive but that consumers are so well aware of the normal association and they want to buy goods with that mark that they are being deceived for the purposes of a to b to refusal we do not have to show that it is well known that people would make this assumption and we don't need to show that here because they can overcome it i mean if it's a problem they can get around it if they're right what with respect to too weak to primarily geographically descriptive my understanding is that if there is any question about whether the market is obscure or not generally well known as a name of a place then then the patent office has an additional burden to for example on page page eight of the board's opinion talks about honest website applicants describes the history of new bridge and applicants role in establishing the town as a center silverware production this sounds to me like the board is saying that there's a piece of evidence that shows a good place association and i looked at that evidence and i couldn't find anything you maybe your only evidence that being cited is on a a thirty three through thirty five of the appendix it's a copy of a website page the closest thing i've found is some statement that says talking about the history of the formation of this company darkie about the great deal of research in correspondence was exchanged between two men in newbridge in sheffield the home of cutlery in the united kingdom as an idea was created a little hard to follow coppery but that doesn't establish that it is a place known for coppery well and then it goes on to say a whole new generation and market recognizes newbridge silverware as a major name in design for many aspects of their life style jewelry accessories gifts but even if that's referring to the company it's referring to the company with the company's name in the previous paragraph with the name of the town in other words if we're looking for evidence that the name of the town  associated with their goods it's right there in those pages that you read you why wasn't that the case with the tell though that somebody that looked up on the web on the internet it looked up the telco if any is found that it was located in the t the problem with all of these obscure names if if your test is can somebody look i'm sorry i'm taking away over but if the test is you can look up on the internet where the company is located and then you know that the goods come from there and even the most obscure marks are never going to be registered so once we're down this road of mark might be obscure and we looked at the second level of evidence the evidence judgment has pointed to about a new bridge the evidence you judge you just pointed to about we tell the vitello evidence is different so in detail they saw you could have found out the name of this town and perhaps you could have found this connection between that name and mineral water the problem in the tao is that the bored me just link they said ok now that it's known it's known for mineral water people seen it on something that's not mineral water make up they would make this kind of secondary beef and they would just assume that since and i would submit that there's nobody that would look in that we type newbridge home into the internet and look at their websites and not come away thinking that the new bridge was a town in ireland from which their goods emanate if there's no further questions thank you strange words on nexus the issue is not what you can find out if you do some structure that you might be inclined to do or not an art to do it's what just relevant public kno then the and the t t c and the p t o can demonstrate that then the relevant buying public will make the goods place association but if the relevant buying public before they know about it doesn't know about goods place and then does an internet search of course they're going to find that because that's what the internet is all about that's number one and number two the i think the  conceded in a sense that they are required to make the goods place association the point that we are making is the goods place association has to be with respect to the relevant purchasing public that being people who buy home goods are ok there's no evidence in the record whatsoever that any member of that group of consumers is aware that new bridge ireland is a place where new bridge products of there's no good place association evidence with respect to any member of the relevant i'm public it's just completely devoid of any evidence whatsoever we're not talking about people who as they say the telco make computer inquiries or who are usually  travelled we're talking about the run of the mill home where purchaser there's no evidence whatsoever as to what that public knows prior to doing the internet search that they examine attorney  well i don't know that i don't do a survey they have to come up with more than simply the company's own web site which of course is going to be evidence that's going to be you know the it's sort of circular it's like you're from new bridge how do we prove it because you say that you're from new jersey new website well i guess people can stop putting up websites but you know i don't think that's evidence of what the relevant public knows prior to making that kind of search or where do you draw the line or what substantial evidence and what's not substantial i mean i assume that if your company had placed advertisements in the new york times washington post the chicago paper the l a paper and the p have pointed out as evidence that the public probably knows that they found that internet searches showing that new bridge is a place which is articles from perhaps not as famous papers but other things on the internet i asked the trouble i have here is setting up a principled way for me to decide what is substantial evidence and what is not with all the key to have this going to be able to do unless we force them to do surveys which we can is look at publicly available information but i think there has to be a that's true but the cases like the movie it says the middle cases there's no evidence as to how many people access these websites there's no i mean some of the web sites that are referred to here are basically out the town council of new breed ireland of course they're going to have a website or you know some woman who started a mental health facility in massachusetts is going to go on a tour and one of the place she's going to is newbridge ireland none of that is dispositive of the issue of whether the relevant public in america either knows about a new bridge or more importantly will make a good place association with a new bridge there has to be some sort of i think showing that means the company has a higher profile or you know has has made some effort to specifically identify itself in a in a substantial way rather than in the past away on a long waterfor