case number fifteen there's four two three zero net jets incorporated at all versus intelligent group l o c argument not to exceed fifteen minutes per side miss marks you may proceed to the issued second the district court's disregard of service mark rights a common law in the intelligence mark and for the district court's finding of no likelihood of confusion regarding void  initio and of set forth in the letter brief that we submitted to the panel on monday the supreme court makes it clear that a court cannot cancel a trademark registration that is more than five years old except for those grounds that are specifically set forth in ten sixty four as set forth and park and fly this is up without for marks or for registrations that are more than five years old and they include generic unus functionality abandonment and other topics that are not issue in th we've set forth in our letter brief the mandate of ten sixty four has been recognized by the t t p and it's also recognized by other circuit court me understand how your arguments proceeding could you give me an eagle eye view of the relationship between in contestability and the limits of ten sixty four someone can provide a greater or higher burden of proof for to either show a defect or a defense than a registration so eleven section eleven fifteen regards cancellation of registrations so a defendant in a trademark case might say that someone's in contestable mark should be able to be of enforced against and cite to a grounds and eleven fifteen but when it comes to the defendant seeking cancellation of that mark they have to go to section ten sixty four and find a grounds there and sixty four out so that's also at play and why there's a distinction between what eleven fifteen is targeted towards doing versus ten sixty four how do you respond to the fourth circuit's analysis in brittingham doesn't that indicate that federal courts do in fact examine in contestability status it has been granted even where the registrar why was the requirement of ten sixty five how did those two fit in the brittingham case the fourth circuit strips in contestability from the registration issue and then proceeded to establish with them that the owner of the mark was not proper however the burden ham pork recognized that the mark was actually cancelled under ten sixty four three so they still they still found the grounds and ten sixty four three under which to cancel that seems like it really you have registration and then you have this elevation in contestability but when you go to the likely the confusion issue the only real role for this is that at least in our circuit it means it's a strong mark once you establish the contestability but after that it's not obvious what role the in contestability finding has in this case and i write about that yes your honor when it comes to the fringes factors in contestability does support the strength of the mark you know that analysis it does not have as much of an impact on the other factors to be considered available here given the language of ten sixty four then the only reason to fight about in contestability is the extent to which it affects the likelihood of success likely to confusion analysis and i write about that well yes i agree that in contestability doesn't affect our analysis under ten sixty four the registration is more than five years old and it doesn't matter whether it's incontestable or not if the defendant can provide a grounds that sets forth intent sixty four of them are can't be cancelled so it does you know i agree that that issue should be put to that and the  confusion i'm likelihood of confusion this is judge that me again i take it if the court decides as the district court did that this was not a service mark then the relevant question is whether net  is licensing or selling the computer software that's the relevant market not the shares for services you agree with that or disagree with that that's not a from question it's assuming something you don't like which is assume for the sake of argument we agree with the district court that it's not a service tomorrow well we believe that even outside of a service market analysis that there is a likelihood of confusion i understand i understand that but i'm trying to figure out what the relevant market comparison is and i'm saying if it's not a service mark doesn't that prove all we're looking at is what does today and what it might do tomorrow when it comes to that computer software  our mark used on the software and that just continues to license the software and the software is evolving throughout the years and now we have the online portal we have customers that access it directly and provide their own slate reservations themselves because of that not just continues to offer a software good you know  software that's protected by within the confines of the description of the registration and the services and not just also hours are relevant to the likelihood of confusion analysis even with the registration they're going to type intelligent and google and they're going to pull of the defendant's web site presumably among among other things and that's one reason why there is a likelihood of confusion and one of the factual issues that we believe that the light most favorable to the plan for poland you know it should be resolved in our favor should have invented a summary judgment decision of course there are other factors that we do feel were not properly considered by the district court those include then circumstances by the defendant and we feel that the district court didn't give that efficient way to the district court also really failed to consider the expansion of the product line and also  failed to give much consideration to the defendant's intent in selecting the mark what's the evidence that there's going to be a big expansion of this product line when it comes to like something that software well your honor next up has grown throughout the years they've added additional subsidiaries that focus on different types of private jet aviation services but i'm talking about that's why i asked my prior question i'm focused on the market of licensing the software is supposed to the private jet service what's the evidence that you're going to be a lot of like thing of the software in the future well the fact that it continues to be licensed today that doesn't suggest growth but just should just status quo well i think that the the the evolution of software and now that it's available online demonstrates that the company is moving into the future and as the world becomes more software focused it will continue to evolve as well i'm judge trent i'm struggling a little bit with with the conceptual argument here because i think what judge sudden is getting to is whether you can consider the intelligent software as part of the services that net jets provides on the whole so that you get to compare it to intelligent great overall services doesn't that bring us back to the in right wall for t t a big case that talks in terms of certain items as being will that a company uses as opposed to the service itself doesn't that constant impact what you get to compare to when you're trying to determine whether there's a lot of confusion company uses the intelligent market extensively they boast about the intelligence services the software and what it does for all of its customers is highly touted it is published it is discussed but just extended the question is in using yes that one is it like a separate service is it a separate item that you are marketing and selling that could get and tell me if i'm missing that conceptually but it seems to me that that's a distinction that impacts what you get to compare to and i believe that was judge sutton's question and he's free to correct me if i'm wrong your honor we believe your honor we believe that it is a separate item not just offered fractional aircraft services prior to having the intelligence software and so it's not something that makes it possible for now just to do what it could do what it does without the software but the software is such an amazing thing that allows things to be efficient safe allows the playing time and the fact that it has been licensed to other entities including the net just middle east city which is not and the answer was no never this is the most important trade secret we have so if you're not licensed there's no prospect of licensing the software that seems problematic in terms of the size of the market and likelihood of confusion trenches question as to what how does all this work together and i think it's very important for going into the specific questions about ten sixty four and those limitations to understand the overarching statutory scheme of the lan act because otherwise we get we go down into the rat holes that aren't very productive the lanham act up an administrative scheme that governs the registration in the maintenance of trademarks by the u s p p o and that's in subchapter one which is include sections ten fifty one ten fifty four and sixty five that we've been discussing and then it also is this is all overlaid by a system of judicial review that kicks in when a trademark owner seeks to enforce or defend its registration in an infringement action which is what we have here under said under section one hundred eleven fourteen and that system the judicial overlay is contains that chapter three of the lanham act which concludes section eleven fourteen fifteen sixteen and nineteen trademark infringement under section eleven fourteen and it was seeking an injunction under eleven sixteen which is far more power than the p t o has it put its intelligent register issue and this  addresses your question of what what is the role of in contestability here it's an evidentiary issue under the first part of section eleven fifteen when they put their intelligent registration issue is either facia evidence of the validity of the register mark or if the market is incontestable it is conclusive evidence of net at the conclusive right to use the mark and that's important and then then at that point the burden will shift to the defendant if they want you pitch your best argument your best case when it comes to the idea of eleven nineteen gives federal courts more power than eleven sixty four and challenging the political mark would give a best case i mean i sixty four only applies applies to cancellation actions terms of power to registration under eleven nineteen i'm asking what's your best case best case i understand your argument what's the best case supporting it n the judge in the vault case i thought he assumed away the issue by finding ten sixty format no no those were those were actually registered and they were and they were asking i'm not asking incontestable i'm asking him in contestability question right now i'm asking a ten sixty four versus eleven nineteen question with respect to the boy happen is she a point works and there is nothing that says that there is no explicit holding and parking flyer anywhere else or any other case that says that the district courts are nineteen is a limited poker related subsections which is ten sixty four why doesn't that undercut your argument because that case is so contrary to the established law that the congress amended consider ten sixty four controlling on the court they also included the functionality defense in eleven fifteen is one of those defenses so it's not shakespeare the fields are cases it's just it's just bad law the best laws supporting i guess i'm just not quite sure the question if you want to talk about whether there is a section eleven nineteenth power it is found in  section eleven fifteen and not in sixty four but it's an eleven fifteen just about challenging in contestability no no no no no no no if it's not going into person from proving any legal or equitable the fence or defect including those that force and subject section b but section a goes if the if the mark is boy then  that's a defense in the end the court under eleven nineteen has the power to cancel the registration and let's let's just say this is just that much just say for the sake of argument you're wrong and  is we have to assume it's a strong mark if we assume it's a strong mark and we look at the likelihood of confusion analysis does that mean you lose why there is this point with likelihood confusion is that they are not using the mark on software and so therefore it's not it's not a strong mark for use on software all they have been doing mean that there have been using it as a as a as a mark it's very commercially we think contestability doesn't necessarily go to the strength of the market the market virtually quite we strong i wouldn't think it necessarily follows you use luzon like we have confusion but that's why i was asking there's quite a few factors and this is your opportunity to explain how they work even if we treat the market strong recognition and certainly all the you know if you look at all the rest of the spectre's there's you know there is no likelihood of confusion for a software product which is what this registration is for between that and what the defendant is using the intelligence mark on which is brokerage brokered services for user well what about the two two sectors that the district court did not consider the similarity of the marks and the defendants intent i think daddy's junky music stores say is that the similarity in particular is i strong factory should have considerable white and seems to me jets the markets yes the markets look well they found and are pronounced the same the presentation to the public is certainly different and but again that is only one factor and it is certainly not the dispositive factor by any means again of that software that indicates that there's knowledge of the software itself doesn't cite their intent because i think that that's quite consistent with the record mr spin that determine the name intelligence for his used brokerage business he did a search he saw that there were a number registrations of the word intelligence for a number of different things including this software service nobody in the software product sorry nobody in the industry in the relevant industry and which  operate or in the in the private aviation industry no third parties indicated they had any recognition or never heard of the intelligence software so in that case there is and and because us actual confusion we know is not the case what about the fact that the intelligence that refers to a song software by shall we say a derogatory name that clearly indicates knowledge of the software why wouldn't that give us another factor is the defendant's intent to traffic on the public knowledge and awareness of  intelligent software this was nothing that was ever made available to the public it had nothing to do with running it's running and it was just simply it was the sales of it very hard to explain are we aren't talking about what they said to the public we're talking about the factor that looks to the descendants intent in selecting the mark and we had already selected the intelligent mark for to run their operation long before they started using it and then you know he'd be mr smith back said that had that had nothing to do with intel and he was not selling software he this was an internal system he had already selected the the term intelligent for his business without regard to and it just it just simply had nothing to do with with the net if there is and there's no evidence that they had this software they called it that they called it amongst the three or four salespeople and that was it they weren't trying to make fun of intel that there's no the intel that software or make any kind of play on that ship at all there's no evidence that about so this is a judge dogs i sort of have a logical question as to the procedural posture just by hypothesis if we were to disagree with you and agree with the other side litigate under abandonment i just wanted to get your confirmation or disagreement that i was understanding the procedural posture correctly yes we could we could go forward on and on and  eleven miss true mentioned that it would be proper to so under eleven fifteen a and in regard to what we set forth in our letter brief we just like to say again that that's not  distinct but related concepts and again you know ten sixty four is the ground under which you can cancel eleven fifteen is the fences and defects and there they are not the same vehicle and you can't use either one to achieve the same result boggs you agree with the answer from the other side that even if we agreed with you on the ten sixty four point and reversed on that point they would still be able to press the point ten sixty four that the others could still pursue abandonment but it would go to a jury of the district court yes it's a genuine it's ok thank you i'm fine what else you have t used to distinguish those services and the quality of services that nasa offers and what's more is that at common law we're considering services if the likelihood of confusion analysis w even more and that's a favor because the services that nasa offers overlap with those defendants and the risk the likelihood of the expansion of the product line also becomes much more