denote a single consistent source of anything your honor there's evidence in the record that mara denotes a consistent source of the services that my client renders in lake county florida  one i don't think it has to denote a single source overall i think there can be other sources and they can still be subject to registration but in this case specifically your honor there was a state court action that occurred during the pendency of this registration injunction in favor of my client but how could you share the same rights with twenty nine or thirty other restaurants that are all selling different products in different ways with different outcomes i'm i'm trying to see how this serves the purpose of a markup denoting the source of the single identifiable product or service you're i think there's two issues here in that question the first one is the intent of the statute is to eliminate public confusion with regard to the source of goods and this is the first step in doing that in the mark was registered since up to nine hundred ninety seven and the registration was cancelled but here my clients trying to establish some consistency within the use of the mark and with regard to what rights the other potential users may be out there have those rights we're not one hundred percent sure they are is that the problem here counsel our case law has been pretty consistent and in the cereal with respect to whether you can have more than one owner of a trademark in fact your predecessor of course says that one must be the owner of a mark before it can be registered and it seems to me that the record reflects that there's many owners of the more well in this proceeding specifically your honor there is only one owner of the mark and that's our client or he's the senior user there's the opposer i don't those records entirely clear and whether or not some of them do or do not so shaken your honor but i still think that the mark of my clients entitle to register the mark in that those other users of the marker entitled to establish their rights to use it are  you point to one incident of policing which is an injunction which at at pearson record is voluntarily stipulated to by the other party that is correct your honor looking injunction which the court found that my client was the senior user of the martian identified the services rendered by the client when you say they participated they have an opportunity to present their position to the court not as if i may continue the holding by the the board in this case your honor specifically is that there was one thing that the market to be registered because it failed to identify or no longer served identify a sole source of origin for the good switch and it seems as though i don't know that's entirely clear from the boards were that was based on a failure to police by my client which i think goes to some of the questions you were just asking however that's the exact pulling in the the wallpaper case which wallpaper manufacture ltd versus crown of wall covering court in that case the the board came to the exact same conclusion stated when a mark loses its capacity to point out uniquely the single source or origin of goods it loses its status as a trademark but it still in that wallpaper case which is a lot different than that there were just two people contesting the mark was still clear that the mark was a d the origin identifiable products here we have a bit more problem with that don't we first more people contesting ownership and less identification of products how the products or the the products with the mark on it and as a distributor i don't believe they can acquire any ownership rights but based on the facts of this case the board found that there are common law rights my client has common law rights and that my client has been using the mark since as early as the first step in the terminating what the rights of the other users are after that notice went out with the the application for registration here and there are only two of the users here c f m and the original maryland fried chicken that oppose that application but once the mark is registered the other users will still have the right to assert priority of user to cancel the registry based on the facts and circumstances of each user of the market whether there's twenty nine right now or not i think still remains to be determined i would submit to the court i don't think there are still twenty nine users i'd like to follow up on a question that draper was was asking and that is the duty to oversee the quality of license and the start of the case of denison the mattress factory or springer and it's followed up by the kentucky fried chicken case and those cases stand for the proposition that owner of a mark or purported or a cat is a duty to oversee the sought to maintain a consistent quality of the product incorrect alike and you point to the record that shows the contrary i don't think that this is before the mark was registered up until one thousand nine hundred seven by someone other then my client and in terms of whether or not they were policing the market i don't think that until nine hundred ninety seven what is your client done to police the morgue since  no but there isn't been any other competition within their common law rights there's been no violation of their common law all rights to use them are since been released there's no evidence on the record and whether or not it was there is definite junction though that what you're talking about is an injunction that declined was not the owner of the market the time the application and the therefore there would have an issue and that if there were any rights that if africa never had rights for his brother albert that you had right such right for last through to get licensing and failure to p your honor i think that the status quo is much better than the alternative if you allow the applicant to obtain a registration the registration means that he has exclusive rights to use the mark in commerce and like judge rayna said you have to own the we look at the contractual expectation who's responsible for the quality of the goods and services and who consumers perceive the standing behind and no one factor is dispositive but no matter which combination of factors we look at we come to the same result that applicant is not the owner of the trademark with respect to contractual expectations as this court is willie with well aware there's a very convoluted and complicated ownership history but what's important to note is that nowhere in this luminous record is there one license assignment or transfer of right to application as the court found in north over this week to acquire title improved priority the applicant bears the burden of proving a clear chain of title extending back to the original owner  factor is who controls the quality of the goods and services as a court found in re polar music a trademark informs the public of the source of the goods and assures them of its quality in this case evidence the record supports the conclusion that  taken absolutely no part in controlling the quality of the goods and services what it would do you do with the wallpaper case where our predecessor court seemed to indicate that mark could indicate more than case like you said is much different than this case and yes it is true that a trademark can to know more than one source there are many cases that have found that i think it was the court found it in the holiday inn case but in those cases that the the issue with typically it was a concurrent use proceeding or somebody filed for a concurrent application and a big knowledge that they only had rights to a limited area and they in their application to notice who the other people were and where their rights were limited and then the court looks at that and they say ok they can each of these independent owners can each of these independent restaurants if it was in this case own the trademark without there being any confusion but in order to be eligible for concurrent use registration you have to adopt the mark without knowledge of the other users that's not what happened and it's being said unfortunately we see no reason to think that the pieces of this would be french can ever be put back together what if we were to say well we think that can be put back together and we think the approach of person too to do that we think the regional orange county maryland fried chicken if they ask for original orange county that's where they are they're in lake county in orange if they were to file for a trademark application that was that did not have the logos in question and they changed the logo and they were the original orange county maryland fried chicken that's fine but that's not what we're here about we're here about the trademark that over thirty restaurants are using they're all using these trademark but they're selling different but like you said some of them specialize in chinese some of them specialize in freaks you don't even have to sell chicken i mean there's no this is not kentucky fried chicken  honor the very purpose of a trademark is to note a source behind the good it doesn't have to be a single source i understand that there are cases where you can have more than one source but there are cases where you can have thirty different sources with respect to  and abandoned under fifteen us eleven twenty seven if through conscious acts of omission in ca mission the market loses its significance mark in congress put that in the lanham act for a reason your honor and the reason is this with this your honor and contemplating the registration of these two marks please bear in mind the significance of the registration fifteen u s c ten to the seven b states that have certificate of registration on the principal register shall be  applicant's misplaced reliance on both the state court injunction and on concurrent use rights more particularly the applicant erroneous that relies on the state court injunction because just a court injunction involves different parties see if and was not even a party to decades it involved different facts all of the facts were not laid out it was a limb unary injunction and a fifty lated settlement agreement there was no finding on the merits it was an intro family dispute all up in the state court this was all about two warring factions of one segment of the constantine family and that would be between richard the father and robert constantine my client and this is all over one restaurant in mount dora florida which was fifteen miles from the applicant's restaurant in lake county florida so not essentially across the street not if it was fifteen miles away and the court found an injunction as to lake county while this the case was pending and that was that was all the injunction did and then there was a stipulated settlement agreement after mr const and my client agreed to pieces mother he agreed to stipulate a settlement agreement to stay out of lake county or isn't that an evidence of enforcement over trademark and it's very limited evidence  that needs to be more than one limited action within fifteen miles of your store where there's no interstate commerce and where there is no evidence whatsoever of unfortunate from nine hundred eighty and till two market analysis as opposed to the constitution it's known around so there was no finding on the merits in in the state court and for that reason alone that the junior applicant have used to mark prior to the application the original application or have the outcomes consent here we would be planting to the appellant the right to exclude anybody that comes behind him and because the second fact is that we need to computers whether it creates a likelihood of confusion to do so under the we're looking at the same mark for the same restaurant services and generally within the same geographic area of central florida or so this was well outside of florida well outside of chickens it is your owner however of the thirty or so restaurants that are currently operating about nineteen of them are in central florida aren't there anymore on fried chicken stores and our own i know your honor there aren't all kentucky fried yes and if there are some in georgia and some other states but primarily we're looking at florida there would be a likelihood of confusion if if the applicant was granted rights in this market and found in fact that not only is there no there there but that the hodgepodge system that currently exists would be better than granting the in the imprimatur of federal registration to the applicant and it in the grey versus daffy  dance case in this court some it's the same goods the same services in the same general service area then there's no concurrent use rights that can be granted therefore no no other of the thirty some odd users could obtain a concurrent use registration if they can't obtain that could current use registration then there's that argument falls apart it's not simply a matter of the other users obtaining a current it's registration was a court appointed state lower federal law and the court was applying a common law state lawyer on it but not federal the same yes the same principles but it wasn't a federal trademark infringement action the applications pending but were forcing common law rights of and the first paragraph on page a sixty nine reason plaintiff is the senior user of the word in design mark maryland fried chicken in lake county through his continuous use of the mark for approximately thirty years to identify restaurant services by his leesburg restaurant so that the mark has acquired a special significance of the name of the services rendered by the plaintiff in his geographic market area and then the next paragraph goes on the pla evidence of the plaintiff's advertising customers from lake county florida witness testimony and the proximity of the defendant's mouth duress trauma to the plants leesburg restaurant that the plaintiff's market area and use of them are includes the geographic area of lake county for the council's record for each party to smith proposed orders to the judge and then the judge adopts whichever one with which ever changes he'd like to make or she'd like to make so in that regard there was an unfortunate action what else did the this that we can do to enforce i'm not sure that the afghans needed to do anything else that there's no case that i'm aware of that requires a certain number of actions taken to enforce their rights in the trademark here but the first time that someone did a fringe upon the rights that they were aware of they did take action so your client was never aware that other restaurants were using the product produced by c f distributing company i think  clear that there was some awareness that there were other restaurants using them or just that they they weren't aware know that what their rights were whether or not they had the right to prosecute infringements against outlets that were restaurants or out of state or outside the county and really goes to whether what the reasonable you're saying is if they weren't aware of trademark law and didn't force their rights doesn't matter because they weren't aware of the law no your hon think it comes down to a commercial reasonable in this aspect of it and i would point to you judge and he says opinion in the wallpaper case again which he said some infringements may be short lived and will disappear without action by the trademark owner which of smith's of course is what happened here some of these restaurants have gone out of business which counsel for one of the opposers testify that there's about twenty of the thirty left right now the judge nice also went on to say frequently one cannot determine with any certainty that one has priority over another's use and to charge another with infringement under such circumstances can be disastrous and i think there's a reasonable standard here is whether or not you prosecute every single outlet that you know is using them or not because you have to consider financial resources and the continuation of the business basically and you have to be absolutely sure of your rights and in this case when they were sure of it they prosecuted i think that's reasonable and i don't think there's nothing else in the record to demonstrate that anyone else fringed upon their common law rights to use the mark and i don't think there's nessun need for any other actions to be shown here with regard to ownership of the marks of the word found without any controversy that he's been using the marker the applicant was using the mark since hundred eighty in commerce and has a commercial interest in the use of the mark on the board there was a voluminous record here and there's a lot of information about ownership in the chain of title and sticks bundles of ownership but none of that is really relevant here is the relevant factor is that my client was the owner of the market that made the registration and it did take steps you can use logic to it was was and over that means it was other owners there may be other owners were not exactly sure restate that your honor he is the owner of the market and at the time the application was filed he was the only aware he was aware that he was the senior user of the marks and in these proceedings he is the senior user of the market there is no one that has priority over companies actually selling some kind of food under that chicken mark for one point i believe the record states there were twenty nine or thirty other restaurants that were using the mark in some form or fashion your honor if a final thought yes your honor i think the the board air here in determining that the marketing be registered i think whether or not the mark identifies a sole source is not relevant whether it's been abandoned it hasn't been abandoned and certainly wasn't banned by my client whether others are using the march not prevent my client from registering the market at this point as the first step in determining whether or not this franchise can be put back together