we're here because the board we do not infrequent to say that mistaking the grounds or merits a termination and with a standing determination on page eight of the blue brief in your statement of facts you say the parties were unable to agree orally or otherwise to the terms of the settlement page twenty of the blueberry you say you vigorously disagreed with the board's conclusion that the ongoing settlement agreement between the party that my party does not have a property right in therefore it cannot have standing this court has repeatedly rejected that line of argument in the books on tape case to the court and or read it quickly the board interest in the outcome beyond the general public well the same issue was great it was addressed in the jewellers case they had the court there said that you cannot conflate a standing argument with the merits that it doesn't matter whether the party alleging like that a confusion has in the property rights of books and tapes the mark was generic and in jewellers case they had not used the marquis had no intention of using the mark they were simply a trade case had was forbidden by congress from selling their products they were ordered by the nd circuit that that they had no right to enjoin the the registration of the case from using their mark but he still it as the court this court ruled in droolers standing it exists in respect of other grounds whether or not my client has a claim and section two d if he has if it has standing it still can bring its claims under like a bona y for the proposition that analysis standing doesn't include an analysis of equitable defenses correct that's an article three stand it is an art that is a case cited by the board in their decision for justifying having completing the the arguments that they could analyze the affirmative defense essentially as part of the standing analysis but if you read the case closely they clearly talk about standing in the st section and make it very clear that they're not going to mix that only after they find that there was standing to get to the they said they were going to do that but then they continued to proceed to do exactly that in so we have not only the so we have a situation where the the board said that they found agreement that my client would not use the mark but he never less did use the mark and used the mark for so many years it continuously and they found that that had been proven in the record that my client had continued to use registration from the red shirt had a certainly a real interest in the outcome of a cancellation of that registration even if my client had not been using which which he has and he never stopped using it he had been advertising the united states that the time it was aware of that advertisement and so he could have rights beyond property rights like the st narrative narratives where they had use similar to trademark rights in order to sabotage his priority so you keep could have a real interest in the outcome even if you accept that he had agreed that he would not use the mark in the united states one for the point i wanted to make and that is that  and they've already struck them they kept these alive for the purposes of the issue of standing but they're still affirmative defenses and that would be something that they would have to prove in order to rebut the case of a likelihood of confusion and they did not appeal findings of the board in summary judgment that there was a likely to confusion and that confusion was inevitable and that those  go back and we litigate this if this case is remand remanded on the grounds that there is standing they cannot go back and argue that there is a contract and therefore are going to abide by the affirmative defense that's an equitable claim that the board's already said is in the  but for the purposes of standing it doesn't make sense to argue for that evaluation be made him the context in term of whether party has a real interest in the outcome of a petition to cancel a notice  in this case because of the inevitable confusion that it found what the board they are telling you that has your client ever sold condoms in the united states under the nude trademark under nude we do not believe so now our exclusively used make it or it's branding equitable defenses do not include contractual defenses contractual us stop all waiver based on contract abandonment based on contract regardless of what the board did was look at the facts of this case and the testimony of their chief witness who was graham porter the chief executive of australian therapeutic and determined that there was a course of conduct here that led to a effectively abandonment that he from an objective standard somebody sitting outside of mr porter's head would believe that they had wound up operations the united states that he stated that we have no more naked condoms in the us you're going to go clear sailing was going on to the other elements so where they actually oppose the application at register this trademark if we look at a case that i found very instructive that we next that consent is in the contract that that consent is in the contract yes and the validity of that contract is being debated by substantial evidence determined there was no real legitimate interest in the market australian therapeutics had no more legitimate interest in this mark in the united states it continued to operate solely out of australia the sales and what they consider to be advertising in the us was on it on a dot a new website in australia marketed to and targeted at australian customers seems to me that the war may have been a little too fixated on that in this case and whether there's there's any type of error on the merits but that's not what we look at we were looking at a standing issue really you can't complain standing in the merits but the evidence involved is substantially the same such that there are inextricably intertwined standing is more liberal and administrative hearing it's instructive to note that the court analyzed the existence of the contract and the and and the terms of that is that contract in an analyzing standing standing must be a real interest and there must be a reasonable belief that one would be damaged by a registration there's not that reasonable belief based on mr porter's own statements everything that he said was subjective there was an agreement but i decided i put it aside after i received a demand for that agreement show a real interest underlip the bigs the agreement between the parties if no it doesn't show that he had any more real interest or were kind of impact is the existence of the agreement have on the real interest we have we have the existence of an agreement and the conduct of the parties the conduct of the parties in and taking their firm steps to perform on the agreement included winding up operations of australian therapeutics in the united states the united states and informing our client that he could go ahead with registering this trademark in united states because they had no further use if they had no further use as of april th two thousand and seventeen no further is debatable or then why does that not create real interest that that renders standing article three and it's it is a way they're bound together in this particular case and what what the board did and what the board did correctly following impreza impreza cigar a legitimate commercial interests it's a real interest that's at industries ministry of defense which admittedly is i mean it's more an example here that was the easy case mr gal had transferred that using aim and therefore had no more an opposition or a cancellation then those are not that they still must prove those grounds what they alleged was that they had continuous use of the of the mark and proprietary rights that and that was a basis for their standing as such they fail to prove that they had continuous use of proprietary rights what they pled and what they proved were different just because there's no or but just because  threshold for standard doesn't mean there's no threshold for standing in this case what was pleaded and what was proved are what are essential here they pled a commercial interest and ongoing commercial interest in the market the united states by mr porter's own testimony there was no further use in the united states they ceased operations they wound up their business they were done and based on that the board found no further legitimate interest so based on substantial evidence the board found that what was pleaded as to standing w enough that what what was plead it was not proven we look to the pleadings we look to the proof for this case they pleaded likelihood of confusion based on priority and based on a real legitimate commercial interest in an ongoing and ongoing sales in the united states and they failed to prove that we have anything  a he had an offer acceptance neutrality and mutual benefits right i would say that that's going to parkfield on this that he said that he had no more condoms in the united to the pleadings we do look to the proof in the pleadings we allege we have the application we prove that it was filed they admitted that it was filed we showed that it was refused they never objected to the route that on the grounds that it wasn't really refused on that basis alone application that's refused then you have a real enters the goal of standing in these cases is just separate the general public somebody who has no interests different from the rest of the world versus somebody that does and here you have a competitor you have