form and the third is an applied for mark of a good outdoor armor in standard character form and as you also know this appeal arises out of a consolidated opposition cancellation proceeding before the t t and the board  can i ask you a very specific question it's my understanding that you disclaimed the word out the door not offshore trying to keep it all straight but outdoor how i didn't see you really gives any sort of differing treatment than in the briefs to the similarity or the respective weakness or strength or anything else what impact do you think your disclaimer of one of your three words has public they don't know what's disclaimed right what it does says well maybe the word outdoor doesn't count so much when you're comparing three marks that's all of the things i don't it gets anybody off the hook in trying to prove what the ordinary consumer thinks of when you see it is just is a really stupid question so i hope that you're not offended but what does it mean when you say we disclaim it doesn't mean that you're pretty much saying ok listen we understand this is a descriptor a normal everyday it just means what you what does it similar but that doesn't recent from the minds of people i mean a consumer who sees armor on screen protectors and floor polish and protect their clothing doesn't walk into a clothing store and say gee i don't know what i mean it's more it's not in those other fields i don't know what things it doesn't erase the words i'm from the minds of consumers they know what it means it's a common word and so to say well just it's not the same clothing so you can't consider it's descriptive that's makes no sense because you have to look at it from the view of the is in the same field that's important well that says that did them and whether there's a likelihood of computers then you get into diffuse generation cases in that when you start talking about customers being able to distinguish marks in the field by small perfectly the same word for the same goods so how how this wonderful it confusion that's our registration i'm sorry i misunderstood the question evaded has the word vague registered for clothing by itself remains suggests that even in the clothing field even though these third party registration time because the consumer still has this word in his or her head as the marketplace strength as we pointed out in the brief mind what if what the policing shows is that other entities don't want to go up against under armor because it's a big company it's a very expensive to fight they have some test that one defender your theory though you would have us say that that right at the reason that they have that they have that perceptor section is because under armor started using it for that purpose and then it doesn't make it completely ignored that that you can c street and they haven't proven what but that's that's why i asked you is this a question distinctiveness because distinctiveness can can if if being distinctive makes you a strong mark regardless of marketplace presence  people have to see it people have to recognize it and they don't have that strong mark and what is the standard for this fifth do pot factor that's why i was trying to get your opposing counsel about disco to fame does it go to the stinky list as a go to market place you know i am not positive i understand and we don't get  cases but i'm not positive i understand what this fifth factor is really supposed to be measuring and then tell me in light of all those facts that you and i did just agree on where you get the basis for substantial evidence to support a  parts to string there's conceptual strings and there's the marketplace three and because sexually strong mark can be a slightly suggested mark and induce generation this court made a distinction between highly suggestive marks and descriptive marks noting that those armor is a strong mark and then with respect to marketplace when you say a strong mark to do our cases say is there anything that ever says slightly suggestive marks or strong marks i mean i'm kind of a little confused by that part yes a slightly suggestive is close to arbitrary understand that i understood you don't have to but how does that make it a strong market that's what i'm not understanding is i understand how it's registerable because it is slightly suggestive and not descriptive right but i don't know why that translates into a fact finding that it is there for a strong market is there really great law out there that shows that the dividing line between strong mark strong market i don't know what that that descriptor means strong right right stronger stronger to me is certainly an arbitrary mark is a strong mark and a generic mark is definitely not a strong argument scripted mark is not a strong mark but i don't know what to make of the suggested just because it's registerable is that automatically make it a strong mark i don't think it automatically makes it a strong one but the board's finding based on the evidence here we have a record with the dictionary definitions and the relevant third party registration which shows that our mark might be slightly suggestive for general articles of clothing might be slightly suggested how does that make it but what evidence is there that it's a strong mark because i don't i don't think that just the fact that it could be slightly suggestive and not really really suggestive makes it i think i strenuously object your honor but like you know i mean i don't i don't know that i get that all the way to the strong mark but that that's enough to carry the water there's no third party registrations for any hour marks except ours and they're of  showed i mean it gave a list of at least twenty marks that have used the word armor and in each case it seems to be attempting to convey with regard to the products it's used on some notion of the strength or durability or whatever you know it i mean when i think of armor what comes to mind is it's going to protect me rights could be tougher than not wearing armor but so what about the fact that in all of the ones that they presented to us where the word armor appears for the various goods that they are being applied to it is conveying a sense of strength or durability well for those particular products it may be conveying that particular notion and that doesn't affect the strength of armor for clothing i mean you can look at apple and there are lots of there are probably lots of apple farms out there are products that are made from apples but just because those exist or there's an apple smell or scent for a soap doesn't impact the strength of apple for computers well but i guess his argument as i understand it is that the mark is not strong because it's conveying and aspect or a descriptor of the goods namely these are strong especially when a cocky about athletic armor it is you know that this is you know these are strong strengths that mean that sort of a characteristic you know i mean they don't put wimpy little geeks up there in their commercials right terry thank you no they're trying to convey a it's not descriptive of clothing i mean there's no finding here there's no evidence of the record none of the dictionary definitions there are no third party registrations that are relevant he relies on registrations are abandon application don't have the benefit of anything that happened during prosecution of that application it's possible that the applicant made a mistake and disclaimed body armor for a politically ok but i don't want to i feel like i've asked you so many questions you haven't gotten to fully answer the very first one which i really think i need an answer to which is so far the only piece of evidence that you've pointed me to that is of what ought to be part of a bundle to prove substantial evidence for a finding of strength is the fact that the board found it to be slightly suggestive and i kind of don't exactly know how to weigh that but luckily i reviewed that you know for substantial evidence so i don't have to worry about it but that standing alone cannot equate to strength marks because then every slightly suggested mark would always be struggle to the dupont factor so what tell me what your other pieces of evidence are that lead to the strengths so an absence of use in the clothing field right that is one of ours and the fact that an arm or has done this extensive policing so when consumers are out in the marketplace based on this record from the only armor mark that they encounter is under that's the only armor mark that they're encountering in the marketplace and here we have a lot of evidence of use despite what he says it's in the records and it's in our briefs and we talk about it on pages thirty nine and forty one of her opening briefs we have hang tags and then on five six eight nine ten eleven and twelve of her reply we have additional examples of it in those examples armors used in different right i mean did we discuss that and come to the conclusion that the board did not make a fact finding that armor had any market strength at all and you're putting to me to there's evidence the record upon which they could have but they didn't you can't ask me to do that in the first instance that's true the board did not point to any market place that will make any fact finding they did not but there is substantial evidence and it's in the record here marketplace strings from and let's switch from the time we have left to the cross not a record in this case he noted it in a footnote in his brief but that registration is not a record the only armor registration that has any strength here that has any use is under armor armor mark and there's a lot of that and when consumers are in the marketplace and they see the of age stylized offshore our mark there are going to remember the armor portion because that's why i'm looking at it i can barely read the armor portion could have something to do with this but i can barely read i mean the bait is is is at least one hundred times larger than the words offshore armor which really these tiny little minuscule letters underneath the word invade and they can only use it this way they can't change the dimensions at all they've got a really narrow mark here in the stylized version so why why would why what is your evidence to me to do a survey and what is your evidence that people looking at this giant stylized word invade with like then armor could be in light red and where's your evidence that that would cause people to then focus on the word armor and so much so that it would cause a likelihood of confusion so in our evidence under and there are other presentations like that in our evidence and in fact if they have specimens they submitted during prosecution of their application is used in different colors and that's one page twenty of their reply brief but the evidence here shows that color can impact the presentation of a mark and what someone would remember from a more when well that's the part you say could impact color what evidence is there that it does even with regard to your under armor mark that it does in fact impact consumer impressions so you're saying you're saying it could but that sounds like a lot of attorney argument to me well because i don't look at the market if the only standard is what i think could happen there's no way that this could cause confusion because armor is this tiny little un stylized thing and the whole the word of eight is all that jumps out at me but the market be used in any color combination and all and again if it's light gray and then you have fire engine red armor is going to stick out in that presentation that's going to be what consumers are going to remember and again based on this record no one knows of a there is no evidence that anyone has ever heard of  has ever purchased any of a there's nothing of evidence of record of that there is evidence that armor has been promoted extensively and for a really long time in the record it's part of the armed armors telephone number at their armor products all over it what i don't understand why the or did not consider the extent to which armor is famous in the context of the under armor mark you proposed that and the board just said no we're just gonna look at armor quite a thought understand the rationale for that because i couldn't follow it i based on their opinion i think what they tried to do was straight the market in their opinion was closest to the of  marks and completely i made a decision based on that i think they thought it was easier but again i don't know what they would get and sue me they thought it was easier to base their decision on to be our mark alone than under armor but our position is that similarity or dissimilarities the mark to really own the main appeal are only two issues we explored strength similarity or dissimilarities probably the most troubling one for me the board's fact findings are pretty much nonexistent like i can't understand the logic or rationale for how they concluded evade off shore armor is in sight sound in appearance the same thing as the word armor standing alone i sight sound in appearance and i get the likelihood confusion conclusion but on this one little subsector i'm having a little trouble getting there so tell me why i should nonetheless think that one factor and by the way even if that one factor goes in his favor it doesn't mean there's no likelihood of confusion i just want to be clear i'm just having trouble with this one factor so when you have a registered mark on your user can't come along and just add information or material to that registered mark and create a new mark in avoid confusion actually the how smart case is well that's true for confusion overall but doesn't is that true for sight sound appearance and meaning yeah like for that subsector because i don't know i mean i just didn't get anything out of the boys opinion and sound evade offshore a or armor i think i mean they sound really different to me though those sounds this isn't like most of the sound cases we get it's words that actually do sound alike and there it's usually like the same number of syllables or close you know same number of words you get my point both of the marks have armor and and them we have a whole series of markets we use our money with those aren't the ones that the boards use for likely to confusion ellis so i think you're absolutely right you actually have that catalog  that doesn't just say armor it says outdoor right across the middle right if that had been what they used to be different then sites out in a parent's old outdoor armor and evade outdoor armor get a lot closer but for just armor you can talk about the other uses of the word armor because those aren't the ones that the board found meaning to be the same so with respect to armor and evade offshore armor the marks do sound alike you have to consider that armor is in both marks and even if you add something to the mark that doesn't mean that the marks don't sound alike that says that's the trademark long and adding a house mark is looked at it when you determine the similarity in the dissimilarity of a mark and when you have a mark that's not descript the two that they've relied on they're actually quite different she was one of the registered marks for cat food that was a descriptive term so adding a house mark to a descriptive term probably doesn't result in likelihood of confusion and in the second  the applicant didn't take the entirety of the registrants market took a portion of the registrants mark and so therefore the marks were different in sound sight in meaning but here we don't have that they've taken all of our under our no one knows about the word of ape that's a red herring that's not the question here it's not up to evade to prove that it's mark it's a well known it's up to underground to prove like that of confusion and they haven't proven it you have to take their word as it is because he really didn't say much you know you're exactly right i mean our position is that of a here on this record it's the type of mark that under armor would use with its marks we have lots of marks and there's lots of code branding between different companies and happens all of the time disney is a company that partners with lots of people and fact every ten year old knows that disney today owns the rights to make star wars