exhibit one which is at bendix a sixty two sixty three you see the great difference in the two labels far away location which has the sun beating on water and the this is not my field of expertise so you need to help me a little bit on this i thought that the issue was the phrase don the beachcomber and not the label on which it appears my mistaken yes the issue does include the labels you're on because the statements of the witnesses include references to those later and while that may be a problem with the statements of the witnesses i thought the trademark issue before us was limited to the question of whether the trademark don the beachco was register a ball in the light of a existing registration for beachcomber and i didn't think that there was a copyright proffered involving different labels the i if i'm wrong please correct me i just don't understand either later on or because the labels form a an important part of the differences between these two are right the application is presented and the application is just for the words in black letters it's not limited to well any particular desire usually you can have whether the application has a t in that case this court you like to read is opinion held that the first word with prominence and also of the first word was a verb in the label and based upon that found likelihood of confusion so we can certainly part would be the way the drain dress is now in the specially brants case of this court the court compare the relative label of the applicant and that  full case the court considered in detail the backgrounds of those late in the whether or not there was a similar commercial pressure to help the court decide whether or not there was likely to confuse as i said that we are entitled to that same situation that the labels are important in determining that fact whether or not there i registering labor well we don't have to register the label your honor because the words are in the label and we're trying to determine whether or not there is likelihood or confusion as an  authorize this registration your use of the phrase don the beachcomber would never be battery from this that is there is no possibility is it your argument that the words don the beachcomber might be appearing on a label at another time with equal size for all three words are you saying that you're bound by this label you know  and this court and specialty brands discuss that situation and say th mark we do not look to this great dress which may be changed at any time but the trade dress may nevertheless provide evidence of whether the work mark rejects a confusing court has looked at the various photos of the labels in question here and it is no doubt eviden a bar and wanted a glass of your product i would say please give me a glass of don and tonic rather than a glass of beach comber in town is that your assumption is how it would work that's right i would say that most likely is a fruity type and has this cool feeling so you would not expect them to be found in the same location from the difference in the label and apple object it not required but this is what the marketplace shows you want and that is the important part here because the consumer coming in to a liquor store or a bar play the statements of these witnesses that are in the record indicate that they were not confused by looking at the bottles in the same way now it is a certain records were not here today to compare labels who are in fact here today to make money just ability determination on the word marks that is what is in the occasion it's a standard character mark which means it emphasizing the word on the labels the labels are completely irrelevant to this analysis i have to focus back on the words and on the forest decision and what you are here reviewing which is the conclusion that don the beach it doesn't matter because in that case but seven points on the case in that case with the word on what is incorrectly diminish the significance of girl that's with this court that it looked at growing said it the analytical approach that's at issue and the board here follow the analytical approach to first require it to conduct be a broader scope protection and there are third party uses beachcomber for similar goods when you have identical goods a lesser degree of similarity is required that's where century twenty one sets in the context of those legal standards and given the beachcombers arbitrary the board found that these marks are sufficiently similar to grant of likelihood of confusion as i've already explained the board's finding on the summary remarks character is supported by substantial evidence and  was in the mark that was verb and also look at what was the first word in the label so therefore the label was certainly relevant to the issue of commercial pressure contrary to what  about the appearance the sound the meeting and the commercial impression and they found the differences would prevent it but other than a few of the board