in fact on the use of particular colors without specifying fixed proportion of those colors in sign for  him the amount of red and in that packaging is not the same as the amount of red relatively speaking in  here but one concern here is when your specimens show a variance in the scheme of your design to the point where whatever color pattern you're trying to get a registration  from any particular tangible thing so is it your view that your market is for any kind of packaging from this company for scope of your application and what kind of protection you're seeking are you seeking for anything and everything that will have this color scheme on it or are you being more specific about it in terms of it's just go be on packaging back in cards and maybe even more specifically than that square or rectangular shaped package backing cards or is it going back to my original question everything and anything that you might be able to course in the depiction the visual depiction of the more governments rather than the verbal description  in the dry is that there's no in the proportion that they're shown in the figure it's that is there anything in the th circuit for any opinion that you disagree with or do you essentially agree with it because i think my understanding of part of your argument was is that at least for purposes of this mark as depicted in your trademark application  know white period half red half white left hand side is read right and side is why would you would you say that that is a i don't know specific that there's a does there's a disconnect between the visual depiction here and the specimens that's a problem because it might suggest that the more goes being on the specific piece pictured here but why you know this is th seems to be unusual it seems to be distinctive with this proportion and black mole orange and yellow and shady and the orange and if it's is not in this particular way you why isn't trademark i don't think the point is that any depiction of more than one color in a design becomes inherently state but but this if you look at this one that this does look this think that you know i think the i think your your argument seems to assume that we're trying to figure out right now whether the eat this particular market with these particular specimens could be considered inherently distinctive but we have a more fundamental question that the board answer which is that as a matter of law there is no way that any proposed market that's just relying on multiple colors could ever be subject to protection as inherently distinctive and so that's really the question here not so much i mean we we could pick apart the specimens if we wanted to but now the question is why couldn't some very unique unusual pattern of colors you know where the colors are individually in different shapes and in all  relation to each other then create some kind of very unique standout design why couldn't that serve as indicating source just like any other unique interesting  inherently distinctive trait dress and so what i'm trying to understand from your point of view is can there ever be multiple colors and only multiple colors that can have a pattern i'm a little confused are you saying that maybe there could have been a different more complex more unusual color scheme other than the one that's provided at eight hundred and thirty that the that the board would have then ok this what we have here is something that should be considered for inher wasn't clear to me if that was because it expected that the color scheme here had to be confined to a particular shape maybe like  diamond shaped of this particular color scheme that's printed on the product packaging somewhere almost like a logo and then in that sense the board would feel comfortable with that but otherwise it it would seem like the board decision rests on the premise that no cover scheme no matter how interesting or unusual for back to back in cards would be good enough distinct design because it's rectangular is that the idea moves from yellow to red so it's it's kind of orangey and pixilated so now we're we're dealing with three colors plus a gradient so white why can't that other pattern or design trade dress marks that are applied for you've got valuated under inherent distincti well i mean i'm looking at a ten and at the bottom of a ten it says we find that a color mark consisting of multiple colors applied to product packaging is not capable of being an apparently distinctive so that feels pretty cut and dried that agency is taking the position that anything that rests on multiple colors applied to product packaging is no good regardless of how interesting unique unusual striking the particular pattern or design of those colors may be board somehow implicitly thought that there was a problem with the lack of a pattern of or design here if it didn't ever actually articulate why walking by walking through this particular picture this particular depiction why this is somehow down to plain ordinary basic common whatever words you want to use such that black yellow orange gradient red is is no good for it particularly in this water in this particular proportion i don't see any kind of analysis like that what i see is a straight forward view that have a particular design can ever be considered for inherent distinctiveness and then just exactly where was the analysis from this board that would suggest that explaining why this particular proposed and you're saying ok that one would be good enough to be considered for inherent distinctive be considered inherently distinctive and would need to be examined for inherent distinctness just not this particular one so it's just packing back your cards that you're applying for not just not any and all kinds of packaging i ask because the st sentence of your the description of the market  mark consists of the colors red into yellow with a black banner located near the top as applied to packaging for the goods period then there's then it goes on the dotted lines merely to pick placement of the mark on the back and back or card and so one way to read those two sentences is back and back a card is an example of the packaging you're trying to get it actually for and you're trying to get protection for any and all packaging with this color scheme or you're applying just for the types of packaging better known as back and back or cards which one is it