not only my work but the the work of the the court as a whole remember not too long ago that we celebrated you're becoming an american citizen you you're an hard and here into good ethics only exam know that in the well stands a young man who is an excellent way or and that i'm sure will be a leading light in the legal profession good morning to please the court my name is bill brown or i'm with the law firm of joel patrick townsend in stockton in winston salem north carolina and your representing the appellant f c a us l l c this is an appeal that arises from months by the trademark trial and appeal board of a trademark examining attorney's refusal of f c s application to register the mark moab in connection with passenger automobiles structural parts truman badges that of firmament by the board in the refusal by the trademark examining attorney came following district court litigation to trial into a final judgment in the united states district court for the district of arizona but tween have reached exactly opposite conclusions about whether a likelihood of confusion on the right is different facts and after different hearings correct appeal where there were not witnesses there was evidence a deuce to the board by the trademark examining attorney there was a far greater volume of evidence adieus to the district court in the district not recogni and was aware that an office action had issued on the application and that the application biopsy a had been suspended but it was clear that that was not going to be given great weight in his analysis but because of the greater volume  didn't that the district court would hear you're saying that the marks are the same is that really the case my understanding in the district court litigation the marquis asserted mark was the word in conjunction with jeep or wrangler and here here applied for mark is just moab in isolation the applied for mark year is moab in isolation in the district court analyzed marketplace usage of them are quite both parties which is entirely appropriate and and even the examining attorney you do some evidence of the ways in which the mark my understanding if the trademark court saw that there wasn't an identity of issues between what was in front of the agent and what was in front of the district d of arizona because the marks were different the marked here in your application it at the mark their debate in arizona was moab in conjunction with word chief for wrangling and so for that reason we couldn't necessarily conclude that the marks were identical to that incorrect understanding of what was going on in the district court certainly jeep and wrangler were formed part of the usages that the district court assessed but the district court likelihood of confusion analysis focused on this the two words moab and moab industries that was that the nature of the claims that gave rise to the infringement  determined for instance that the moab market was not particularly commercially strong in that instance and although there were other usages and a market place context for the district court to evaluate it assessment was about infringement or not arising out of s c h use of the word mo out at the board level and that is essential to focus that it didn't come out clear for me are you saying that the district court did not consider the word jeep wrangler in conjunction with the word d no as when it was trying to figure out whether there was a likelihood of confusion between malacca industries and your usage of the turmoil evidence of jeep wrangler being present in the way f c a was using the word moab was certainly before the district court right or just said the district court considered that those additional words in trying to d assess whether or not there was a likelihood of confusion and i've wrong about the assessment even at the register ability level bears at least in part on how the marquis's use gin reference to when used in connection with the goods or services involved and councils against in mental exercise but instead an assessment of the marketplace circumstances in which the parties respective marks may appear in the marketplace so the district court's analysis is not terribly far afield from the kind of assessment that du pont asked the board to me and i think part of the the error in my view in the board's assessment here is it's unwillingness to to recognize the similarities and a great degree of similarity in our view proceeding altogether it did consider it it did come to an opposite conclusion from the district court is that their conclusion they will review that conclusion by reviewing whether supported by substantial evidence yes on the on the facts you may do that of course the likelihood of confusion standard in the circuit is a question of line you can review that matter of law or no but the underlying facts would need to be supported by substantial level so why don't you move away from the idea that the tea tap is somehow constrained by the district court because it's not and it has to drain a said it it properly considered it but it came to a different conclusion so why don't you tell us whether you think that conclusion is flawed either as a matter of law or if some of the facts are not supported by substantial evidence when it you get to the merits of why you think we should reverse sure so for instance we view the board's ruling on certain of the du pont factors as not having been fully consideration for example the sophistication of customers the district court gauging a fairly extensive analysis of that board said we just need to extrapolate to how sophisticated the purchasers of the most inexpensive something sub compact car would be without to do sing out of what level of care someone buying itself contact car for example would evaluate the district court viewed the trade channels of the parties respective marks as being quite board found that there is some degree of related notice to those goods and services in that context again i think it relied in in fair part without evidence on the notion that that th stuff the owner of the cited registration is itself a trade channel for structural parts per for four automobiles i don't think there's evidence to support that particular aspect of the related the the similarities in the marks and the similarities in goods shouldn't be dispositive of when there are other factors another evidence to consider which the board did do some of that we think there are some flaws to that assessment the district court certainly did that in coming to different conclusion about whether there was a likelihood of confusion rising from the various mar and we certainly think that at minimum the th dupont factor the catchall permit it's the board to assassinate valuate the district court's opinion and we think it simply did not give sufficient weight to that conclusion after a full evidentiary hearing between these pardons about the marks in question ribs in question trade channels in question the sophisticated nature of the purchasers question whether there was any likelihood or actual confusion all of the kinds of factors that the pont lays out that the district court assessed in in its infringement assessment at trial and we think that good morning i may please the court the board did exactly what it was supposed to do here and looked at the application and the cited registration to consider the marks in the scope of the usages disclosed in them it pointed to substantial evidence in the record for all of its findings on the relevant to pas it weighed those factors incorrectly concluded the confusion was like as part of that analysis it addressed the district court's decision it found that the district court  had decided materially different facts a different likelihood of confusion question that it had to decide because of the difference in f c s mark and the scope of the usages in the trade channels and the customers that th the same facts or delicate facts then perhaps a district court decision could be would be controlled no i don't i think if i think it would be certainly more relevant in that  the board would have to look at the district court and if we're talking the exact same facts evidence the exact same mark it would have to explain why it wouldn't be finding the same way i think in that instance it would be more of a comedy kind of thing as  require that the p t o is a party and so i think what's more appropriate here is what this court said in power integration which was a patent case in a reexamination context where there was a claim construction issue about the term coupled and  in that case the party to the reexamined had argued to the district court one meaning and they argued to the board that look the district courts claim construction this is what you should follow a board the board in that case didn't address it at all  exactly identical either right because f c s mark and the application if you don't have the hypothetical is what if the facts are identical if it is the exact same mark and you suggest i would suspect that the board would find the same way but it's not under a theory that it's down to i think it's because it would be the evidence before the board and you know the board is certainly free to say yeah i agree with their brief didn't respond to the blue bruce set issue the mother's recipe could you hope our understand why mothers restaurant doesn't say something to the contrary mother's restaurant doesn't say something to the contrary and i think our brief address what mother's restaurant wasn't a party to i believe it was a state court proceeding but the licensee was and there the mark owners entrance were deemed to have been kind of virtually represented by the licensee in that part case that's not what and so that would be why mother's restaurant doesn't apply p t o is acting in the public interest in assessing register ability under its statutory mandate to determine if mars are eligible for registration and in light of the presumptions that an certainly and i do i want to get to the judge when you're one of our mothers restaurant because the office and registrants registrants in trademark infringement litigation both seek to serve the public interest registrants often rely on trademark litigation plaintiffs often cite but the public interest is also involved in as a part of i don't see where there is a greater interest from the office than there is from moab industries  to the to and often and this court's cases and more cases recite this frequently that if there is doubt the doubt goes in a likelihood of confusion instance the doubt is resolved in favor of the senior regist t those interests are are highly aligned with one another and and the office until today made no virtually no effort in its briefing to to distinguish those interests mothers restaurants ports  yes that that is its holding there is no least as i understand the offices position there isn't a mechanism by which by which the trademark office can then be made a part in order to so the position i believe from the office is there is no set of circumstances under which the office is bound by issue preclusion principles and that just seems counterintuitive and