inherent powers provide i believe strong reasons to reverse on the lanham act issues and remain and to vacate the sanctions order as if instead of having a link on the merits now i'd like to start back with the controverted from the outset and they were particularly important to section fourteen standing if the board chose to apply the lexmark two prong standard that is redress ability and cause a nexus as had been later applied in the bill more cases from the th circuit so the strategy of controversy the facts and in raising the law and merits motions coupled with profit overtures to settlement settle the case were the two registrations the longstanding marks yes your honor so there was going to be an exchange there the now when the lexmark motion was made that's the st motion challenging standing and after receiving the ruling that supported corker moore's argument in favor of lexmark the board simply said it would not considered and moved on it did so because of this court's decision in cuba tobacco the board's view is  two cases the two decisions are in conflict or irreconcilable i don't totally accept that but that is their their view and if you accept their view it creates what i believe is a rather untenable situation if a party files same facts and you could ignore lexmark and bellmore and similarly take the next step is if the bill mora had gone taken the decision from the t t p to this court what would have been the rule and of course the more a take in this case the eastern district am act statute uniformly so we have consistent results and if you find uniformity we would look to the supreme court and where in the lexmark case so whether it's the holding in lexmark or it's the use of  not a cuban company is in the title go to court go to the board and seek to cancel registration it's really just gives rather short discussion of the nd prong and that's the issue here is the likelihood of being damaged as a result of actual use of the mark by the the other party in fact in this case corporate now since at the starting point they had argued or pleaded rather facts about pork more that are untrue or cannot be proved and they've had to kind of morph into some other version of facts that are not in the complaint the i think the board erred in sort of taking that is true and dismissed lexmark so keep it tobacco again it's about whether or not th cuban company who's apart from doing business in america has a client cause of action courses yes the redress ability problem the st prong of less mark is met the nd prong is either not discussed or it is distinctly different from this case right so i believe this court has both review authority as well as supervisory authority over proceedings and if he to be and i would ask that exercise of authority distinguished people tobacco as a case not on point while belmore is on point and review remove any idea in the board's mind that there is a conflict between the two now i think the transitioning i think the further problem is that the motions that were made that address the merits back or more about the more motions that controverted jurisdictional facts because standing has been held to be jurisdictional and ask the board to apply a federal court precedent cannot be deemed frivolous sanctionable bad faith believe there are objectively reasonable and should be encouraged felt that as well as settlement now i want to focus in particular on a rule thirty seven b sanction which  erroneous lee ruled as a matter of fact that certain supplemental discovery was never sent and never received and as a really expanding i think there is foundational to the rule thirty seven sanction sent never received but there's no dispute that on the day due that the an envelope was postmarked today as if employers it was delivered they actually received it and inside of it it's actually it was actually sir it was actually received and for the board blue that no responses and no documents were timely and actually sir and actually received it clearly erroneous and for that reason any sanction based on that should be reversed the regulations require due to that discovery or serve it by email that is a general rule that was became effective in two thousand and seventeen and so if i had to do over again and i had a way to email you know a twelve megabyte file then why didn't you use a file transfer site that's what the other side right they do have in their large a section of their network mess and allow that i don't have that i'm a solo i use a paper calender so you are correct you are i should have done better on that i should have done better but i think moving into my next argument about why the sanction is in practice because it was an abuse of discretion the court the board did not consider the most relevant factors that must be considered before such and harsh sanctions imposed the st one being there was no material non disclosure they did actually get t docket in fact the documents most of them it already been produced previously they just had then didn't have a base number form so the supplemental production was of a stamp documents so there was no not disclosure secondly there was no prejudice in fact you really doing everything you could to delay the proceeding and obstruct the progress of the proceeding not saying you did but let's just say that's the way they looked at it and the board lost total confidence that actually follow the rules but the key point i think you mentioned there was a delay so the board found that i had delayed the case report more had delayed the case if you actually look at the chronology again of the case was filed the lexmark motion was file that there was no suspension of the proceedings for the motions of rafal because they just just they disallowed them so that it goes to the end and the last thing is in time the only thing that happens in the time between the motion compelling settlement discovery and the final order is this ruling that it was never actually sent actually never actually received so i believe the last thing is the order itself compelling discovery specifically said here's the lesser sanction it's not produced it's going to be that was a sanction it was warm there was no warning of the law of the terminating sanction that the board ultimately in or that just comes out of their opinion the nd aspect of the order compelling discovery says and i quote that we can any potential prejudice can be remedied by extending the period that backstabbing discovery period is necessary therefore if they set up what we you said this by mail on thursday and we didn't get it til for repeatedly ignoring board orders and for other agreed just behavior turning st to issues dealing with the right to petition court to mars assertions about disputed facts regarding use distract from the properly played  basis for us offense petition for cancellation simply looking at the trademark registrations at issue provides a proper basis to petition the t t of the for cancellation specifically here s f m has pled that owns trademark registrations for sprouts and for sproles farmer's market in connection with retail grocery store services it also pled the court more owns a federal registration for sprout for use in connection with vending machine services vending machine services fall under international class of good thirty five dollars as does grocery store services as a result we have registrations dealing with the same class of goods and dealing with nearly identical marks that is included in the amended petition turning to the law that allows us as on the right to petition as that is right to petition is governed by section fourteen of the lanham act and section fourteen of the land act states that the cancellation procedure is available to any person who believes that he or she will be damaged by the registrations this court recently in and present cubana cited lexmark and noted that lexmark clarified issues sometimes discussed in terms of standing which are more appropriately discussed and viewed as interpretation of statutory causes of action here the statutory cause of action is section fourteen of the lanham act and that's a statute that must be interpreted as instructed by lexmark as a the decision that addresses the cancellation brought under section fourteen it doesn't get into which standard should apply instead it's a very short section of the decision and it said that the district court improperly read a use requirement into the lanham act and for those reasons it finds that there was standing so belmore up focuses on the use requirement which is not present here and that issue and rd belmore is a th circuit and under the precedent that is on point as f m has standing as a fan has at least two real interest in the proceedings st as a fan and its related grocery stores have a trademark registration in cunningham versus laser golf this court explained that registrations and the product sold under the mark they register are sufficient and necessary to establish a direct commercial interest in standing to petition for cancellation thus under cunningham versus actually under less egregious circumstances is an appropriate sanction so when the board issued its sanction here it was relying on an express rules as well as this court's authority that it was not of the use of discretion something else to point out is that there is not a requirement to find that the documents not produced more material what the rules say is that if you have repeated violations of a board order and lesser sanctions are not appropriate further sanctions can be issued so here's the question was there a repeated violation of a border and this can be addressed by looking through the  st example that the board cites is that it ordered respondent to appear for thirty six dollars depositions respondent refused to appear for that deposition despite the board's order to do so the board and it's just such an also notes that when petitioner attempted to reschedule the deposition or more search of jackson's and again refused to appear despite the previous order to show up for the deposition that's one example that would support the sanction the board continues and identifies other details of its order that corkboard did not apply with so the notion that this was unfairly based on one errant e mail or one set of documents is just not true and it misrepresents the board's very careful analysis and decision further the issue of whether a lesser saying would have been appropriate the idea that more time should have been given or that there was a lesser sanction that would have changed this case  address that as well the board issued the st sanction in this case which starts at appendix sixteen and the same sion is discussed in that order denying a motion to dismiss at a can it's twenty three dollars that's a she was ultimately lifted in the case but then a nd sanction was entered the nd sanction was for abuse of discovery in filing for list motions and that can be found at appendix seventy dollars that was violated and before issuing any type of draconian order the board reiterated the nd sanction which can be found in its decision as pages seventy three through seventy four in that same order it notes the objection to the case schedule was a violation of a sanction and again reminds counsel what needs to be done to comply with the order so there were two or earlier sanctions issued both sanctions were violated and the board provided reminders of that violation when the bad behavior continued a rd board sanction was issued which is why we're here today so the idea that there were repeated board repeated violations of board sanctions is present here particularly pages eighty seven dollars eighty eight cents it identifies that there are multiple violations so the lesser solution that you brought up would not be appropriate for the violation of matching up to a deposition that's never been rectified  to those in benedict the board's inherent authority section in its decision also identifies quite agree just behavior that i don't believe was here was president and benedict some of that egregious behavior includes hanging  t counsel during meeting confers refusing to meet and confer outright refusing to read or open emails from petitioners counsel for years that behavior is summarized by the board at appendix eighty nine and i  deposition then both parties serve deposition notices and it led to a stalemate they would not produce anybody so i said i would proceed by i then opted for settlement discussions so their settlement discussions the week leading up to when the deposition an e mail out i didn't know was there it was over and done within seventy five minutes so in real answer your question what's going on is i'm this managed to stalemate it was a stalemate where no party was going to do what the other party was requesting and they their strategy was accepted by the court i'm not defending that i'm saying i could have done better and should have done better on that but the orders as we can extend the period is in difference here between this case and benedict is that as motion he never schedule it so you submit it if you look at my request for a motion to compel i said let's have a conference i'm available for a conference if there's anything else you need for the conference let me know but i submitted all the paperwork that is going to require so in other instances i did but i do take exception when a court says that it was frivolous a frivolous motion when i asked the board to follow more i think it's a frivolous it's not frivolous to ask for permission to do something even if that's not you