missing anything isn't the only difference between one three four four four seven and four six the size that the only difference is the size sensually yeah ok and you know one of them not a trademark of the other one doesn't and that's why it's a trademark we let you make it bigger and you don't make you make the made in china thing quite as large and the other one it's not a trademark making making of comparable size that's the only difference right is really for the most part yes and then also the question is where  file and with us p t o and what the date of the application and has no bearing on whether the consumer is going to be fooled or misled about the origin of the article can i can ask you this question and i realize th is not something that i think i can really find in the read brief but right i would one thing that for six and for seven if i can use that shorthand are mutually exclusive other they don't read as mutually exclusive why isn't in substance what the government is doing is saying they're not mutually exclusive but for some trademarks we will apply only the four seven laxer standard and we will say for four six won't apply to some trademarks namely those trademarks which are either registered  the subject of a still live application and one can contemplate why one might do that but as i say the read brief does not make this particular argument but it's not clear to me that the  confusion at this cases particularly you could have come confusion with trademarks you could even have confusion with registered trademark confusion about geographic origin why i mean maybe i'm just missing something so tell me the government appears to accept the proposition that something is either in for seven or in four six but never both and i don't really understand why we're proceeding on that premise except that the government is not  products and customs the same fine if that's a trademark then will allow you to market the goods conspicuously because we know no one is going to be confused about the origin or non non location non arjen of that particular merchandise  that answer your question let me just try once more and i think so for six says we have a standard if you use a geo a particular kind of geographic set of words usa united states whatever if there is a real likelihood of confusion about that consumers may get in there had the wrong idea about where these things came from we're going to have to market in a particularly conspicuous way or seven says if you have a trademark you have to mark in a less conspicuous way no they both require conspicuousness at m so that's conspicuous as we went through this before larger or smaller nearer further we're talking about  the way you have to mark right yes ok so why in the world and there not be an application of for six to a registered trademark because helping the regulatory language that says it particular pair of jeans with a particular set of words that include usa on them is in one category or the other but never both because the regulation forty seven provide for a more lenient standard if and if the market is and is a trademark even if there is a likelihood of confusion if there's the idea the idea of the trademark though is it distinguishes one's good and that no one would be confused because they know the source of the goods based on that trademark they know who is providing the goods they don't know where the goods are coming from the first graphic origin first says you know supplier origin with your argument possibly be the structure of the regulations forty six comes first one is the general one in forty seven which comes after right creates a bit of an exception in fact even begins when as part of a trademark almost like keying in on the prior section when as part of a trademark you now so here's what the one right before it says and now when in that thing before is now part of a trademark this is what applies media yes if you would you want to make a regulatory structure argument that well it might my point  can make that stench and wear the trademark on the forty six but over the last twenty seven years customs never never in the act it would have posed any general notice or rule that says we're going to change that and it's still on the books so you have this artificial rule that says if you file for a trademark and half keisha's file we're going to give you the more lenient marking structure that's as opposed to a market that's not filed with the at and trademark office and we just to be clear that could have been enacted right i mean even though you don't love it and think that there are some shortcomings of an impact that could have been a decision that people would have make we want to encourage people if they're going to use a trademark to take any confusion off the table to register it so it's clearly known by everyone and they could have sat in this regulation for federally registered trade and that's the problem because the regulation doesn't say that customs has never put out any notice to the public that says if you apply for a trademark we're going to if you do less of marking standard and that's and that in this particular case they've created this artificial dividing right now i'd at least i mean i kind of took one point of judge morse question to the you have an argument about the regulatory language that is strong thank you trademarks are not limited to register or apply for trademarks you started making argument about how a distinction between those and and other trademarks trademarks for which efficacious has not been sought or or obtained or rejected that that's artificial that's a more challenging arguments about whether the distinction could make any sense had it been adopted in the regulation now i'm not saying that you are one saying as is that even if we accept the filing of the application to be at the firing line between we're going to accept that vs not artificial they may not you may not be using it in a way which communicates that consumers will view it as a supplier origin identifier as opposed to a geographic identifier the fact that you or you have used it which is a requirement for registration right does not itself tell you what meaning consumers will take away from it which is why it seems to me at least superficially again we're now talking about the they kind of reasonableness point the artificially ality point the relation between four six and four seven  point it's not it seems to me on its face crazy to say we need a preliminary marker of whether a set of words that includes usa united states is being used for supplier identification as opposed to geographical origin and and a registration and actual registration or even a certification by an applicant for registration is some evidence that that is how it is being used and so there is less likely to be confusion about geographic origin because people will more likely simply understand it to mean its mind rather than yours so it seems to me it's not properly marked in accordance with one thousand c f r one thirty four forty six it's clear it should also from the trial court's decision and that customs interpretation of the term trademark within the meaning of forty seven as applying to those marks that are you registered with at a trade office or have an application pending is entitle to substantial deference because the regulation itself is silent as to what evidence and you can you help me to help i hope i was clear maybe i wasn't on th threshold question that i would i don't think you've made this argument but it's there some reason in the text or otherwise that you take as a premise which i think you do mislead or deceive i think forty seven presume that if there's a trademark or registered trademark or not that is the let's just use the language of the regulation ok as if there's a trademark you have to basically give a a week or form of so that can be read if there's all over the genes in this case if there is a confusing country of origin locality there would have to be the correct marking next to each of those names whereas forty seven just requires a conspicuous location and or be just one so it could be just once so and in this instance for those goods that came and after the application date of jay bilas mentioned that his close proximity was deemed ok if it was just a made in china label inside the waistband of the pants but for those that came in before third or where there was no application or evidence that it was registered with a patent trade office then those chains were subject of more strict standards so that would have to be anywhere on the goods that there is that confusing locality name and there is that dividing was there something in the i guess i think your mr politics referred to the one nine hundred sixty eight regulatory primal nation of these two rules is that right yet and was there something in that primal geisha and that said even though there is no language saying that for seven when four seven applies for six doesn't that we mean that because there's nothing logically inconsistent right because you could have a trademark that in term has the property of being whatever for success was it likely to mislead or likely to mislead that's right they mislead or deceive right back so that if you could prove that as it if you the likelihood to mislead and deceive because there is a trade and but that means that your argument really does depend on are saying trademark can be interpreted to be a subset of trademarks yes exactly i mean i a business entity whereas the regulations as interpreted and forced by customs they're looking out for the consumer they're trying to prevent consumer deception it's not about the medical dirt it's about whether somebody is going to pick up these jeans and be common law trademark somehow makes it so you should have a standard for for the reasons you're saying i think it's beyond the purview of customs jurisdiction in order to investigate whether mark is actually being used you know it in commerce it's just regulation as a plank of registered trademark you're sort of defending a policy choice to limit it to register trademarks and you're explaining why that's not the issue the issue in front of us is a pure regulatory interpretation issue the common definition the standard definition of trademark in every forum including the intellectual property laws enacted by congress include common law trademarks yes that is the plain ordinary meaning of that word why then is there ambiguity such that if that is the plain ordinary meaning you said yes a second ago and i mean i don't see how you couldn't say yes to be disingenuous not just so you know but given all of the evidence that i don't i don't know how there's any ambiguity in this regulation such that any deference to any agency decisionmaking is warranted because the regulation itself does not define the term trademark regulate itself doesn't say federally register or common law trademark it just says trademark exactly plain and ordinary meaning of trademark in every dictionary in every textbook and in all several legislation related to intellectual property rights includes both that all registered trademarks and common ma trademarks don't we presume when regulations are enacted or when statutes are in acted that those who are next to them are aware of the plane in ordinary meaning of words especially as they are used and defined in other statutes and regulation i would say that the plain meaning of the term trademark as you describe it does not apply in this instance because context this is a limited context and it's about customs in forcing its obligation to it enforce its own regs that are promulgated in accordance with the country of origin marking statue so it's a trademark within that context specifically within that mean that is correct but you know the definition the less find the word and begin with the spite the fact that it is designed defined according to this record in an enormous number of sources consistently as including both but you'd like me to nonetheless find it's invade us why because the customs reagan i'm supposed to think customs is just generally ambiguous i don't understand it i don't think that's the distinction you're on or clearly not yet because that was kind of sarcastic interchangeably with federally registered trademark i understand you do realize the problem with your argument is regulatory in statutory interpretation is really important and i take my obligation to give deference to agencies very seriously as does everyone on this court but  it would be it would be really problematic if we started going down the road of studying a word that has a universal common understood meaning and every piece of evidence in the record says it means this is none the less ambiguous just because the agency that wrote the statute wants to say it means something contrary to it's plain ordinary meaning i can't i can't do that it has nothing to do with this case as you do with just the process of regulatory interpretation and how it's supposed to work i understand your point your honor you guys can always go back and menace reg at any point it's true it's fixed this is the problem of your making i mean there are the two regs and there needs to be a method in order to distinguish that your rights and so that's what custom it's has done consistently for the past twenty five years and test either it has the question of the application for registration come up before in terms of what whether for seven applies to a  doing something that is sort of for us institutionally quite extraordinary is saying trademark doesn't really mean trademark and you're fixing this i'm sort of trying to understand is this a new problem or has this regulation is sitting here markings customs rulings really are the early ninety's so there's not been a lot of movement on this issue for a long time so customs during this long stretch of time from the early ninety's has been consistently looking do you have an application for a trademark or is it a registered trademark i understand that it you know the concept of trademarks is bigger than how customs restricts it in this instance but it's done so consistently for twenty five years with in the context of just the country of origin marking statute regulations it's not investigating whether something is used as a trademark generally it doesn't have the resources to do that customs does that's that's for the patent trade office to weigh in on and that's for the courts to weigh in on but it's not for cousins to weigh in on i was like a pretty good statement of basis and purpose for a reformed regulation i understand you have anything other like to add i think i would i would love for the court to have heard that the trial court's decision thank you for your time it's accurate and like to just make a few points and going back to your point your honor about trademark the rulings that castle refers to and that are included in the appendix as well i think in one of the and then them only state that the application for trademark is evidence of the trademark it's not determinative of anything else will consider it as evidence rather than require anything more from that particular importer so filing the application serves that singular purpose and the rulings that they over time say that routinely and at least since one nine hundred eighty nine customs recognizes we've not to find the term trademark we need to think that we'll get around to it they said it rulings in the early ninety's they said it in the r for failure to mark and they've also made hundreds of thousands of dollars of claims for liquidated damages for not marking them within the period of time so that all hinges on this decision as well the other point  it's page forty page forty four you'll see pictures of the marking on the genes and as court knows anybody who's ever purchased a pair of pants the first thing they do is look at the color and then look at the size and the country of origin markings displayed