the morning your honors may it please the court the question before you today is whether the foundations clothing design work and elaborate haven't inherently distinctive for the service is a public promotion of healthy and religious family life our people today is limited to the services we're not appealing on the issue of the clothing class twenty five another three reasons why the border area in this case and why its decision should be reversed first is that there is no evidence whatsoever to support the board's conclusion that the foundation's clothing design lacked inherent distinctive the second reason is that the board fill that gap where the evidence should have been with improper judicial notice its own observations that refer piecemeal to some elements of the clothing design and the third reason is that the part of the decision by the as far as we can tell that's correct you're on what does it matter whether it was improper or if it had no impact on the decision even if it's error why wouldn't that be harmless error and that's were not grounds to reverse as far as the decision of inherent distinctiveness your honor which is our main point we would agree with you but we unfortunately from the record cannot tell what role that information regarding claudius legislated but there's a burden is on you to be able to tell to be able to show that it tainted the decision but i would agree with your honor the regarding mr stephen cheerleader she sure is that there's not a whole lot of help in terms of what that evidence would have a real answer would have given us that is pertinent to the inquiry that r i just don't believe that the evidence that related to claudia as would have related to the point where or what again is this is the central air of the board that there was no substantial evidence supporting its decision of lack of inherent to stick to mr under the seabrook factors your honor it's necessary for the reviewing for the tribunal to decide assessing that there's line against what else is out there in the field what it all boils down to is the trying to see whether this design stands out crap and for example in seabrook itself the opposer produced evidence of what third party designs will be the register actually you use here in this case a poser provided no such evidence there is no comparisons noting some of those differences respectfully your honor i would suggest that the information that that it said was before it was simply an act of judicial notice there was no evidence in the record regarding what other and therefore you could make comparisons between the have been an issue in this case and some other roughly similar that would be true your honor if there were more than one particular had it depicted i believe that the photographs are honored for fern to r two photographs of a number of habits being worn which were the habits of our client and it's clothing design and one individual appearing in two different photographs of the same family with the same religious custom religious ceremony asked so no your honor we would say that there is no other evidence no evidence that supported the board's decision that for example it is common in prosaic conventional that  know you wouldn't really treasure remand to determine whether it's true or not i would say your honor that there is no need for him and i know you want to win out right but i mean one of the tests for judicial notice is you know does the the party that's opposing judicial notice really value getting a remittance that they can feed the argument that the evidence in question is is known throughout the jurisdiction the answer is i mean the judge takes question has to be of course habits of one and it's widely understood that that's the case you're a human it seems to me has to be and i understand at least part of this that the fact that helmets are worn doesn't mean that this particular habit was what he wanted and i was heading in that direction or i mean that cars are driven on the street that doesn't mean it parked a corvette isn't a distinctive car indeed you're on and that's where i was heading that's because they because they have it because ceremonial  cross on doesn't necessarily mean that ceremonial clothing that has the truth for a length sort of cross design on wouldn't be distinct inherently biased and wouldn't be inherently distinctive wouldn't stand out from the crowd here the crowd of pets a crowd of hats that is correct so in essence because there was no evidence of what this crowd looked like whether or not judicial notice was taken it was not possible for the board to prove a lack of inherent distinctiveness but after analyzing all of the seabrooke evidence the board concluded that applicant had failed to present evidence that the habit is inherently distinct that the board had the standard precisely back so what would happen if you got the mark registered that mean you'd be able to go in and join the heralds from conducting services where in this have we would be able to conduct others from we would be able to join others from conducting and well join that what we would we would say or are that we're not talking about if you stepped in interstate commerce trademark type use now that issue is not before us because we're not on that this is the issue i of contemplated and religious life and we would say that that's not a trademark acknowledge that there was a lack of evidence of record the board substituted its own observations and implicitly took notice of them but those observations did not relate to the foundation's clothing design as a whole but piecemeal as to a few individual elements of that quoting the board picked apart the foundations have a design in order to conclude that it was not inherently distinctive and even the conclusions that the board that from its observations were flawed it concluded that religious people were habits as as judge bryson correctly pointed out and from this the board that found that the foundations habit is just like any other have that's wrong because we don't know what other habits look like there is no evidence even from the board's judicial notice and there was no comparison of the foundation's habit in its entirety to any of these existing designs because unless there were exceptional circumstances shown for why it should be admitted as opposed to the way the federal rule applies which is to say that it's admissible as long as it's shown that the person was indeed absent and unavailable and the unavailable was not procured by the proponent of the evidence i would agree that it could be read that way i wouldn't siddur necessarily it wasn't that way i would say that the board was exercising its discretion under the rule to keep that evidence out because it quilt that mary queen had met the standard of making show that it had to show to meet the exception for having its own party's discovery deposition the showing being the showing that it had not procured the deponents absence that the person was truly absent from the from the jurisdiction and i didn't read i mean i even read liberally it seems to me it's that's a stretch to read the board's decision as saying we find that mary queen cured or at least didn't prove the that it didn't procure the absence of the deponent all i would agree with your honor there was no there was no finding that the that mary queen procured the hour even a finding and nor and where would we when that gives it a lot more discretion than a district court would have that well that the principle that's being applied there is not so much principle but will this exception is only granted upon a motion to the board and that's where the discretion that we can only conclude from the board's language in its opinion that they place the burden of persuasion and production wrongly on you that's correct or now having a lot of trouble figuring out how that would be zero isn't the quote you gave us from the board amenable to the interpretation that they found that a burden of production and fallen on you because of a threshold showing by the other side that would be correct your honor what we were talking about was acquired distinctiveness but that's not which a trademark registration shall be granted unless and so that those are those are all things that cannot be granted as long as you have jumped over those hurdles before the examining attorney you're entitled to distinctiveness is automatically present if you file an application oh yes your honor unless the unless the trademark office finds it differently and here the its this application is before an examining attorney of the us patent trademark office what you're saying as well they have to go an additional step in show that those habits are similar to the habit involved here i take it this so so that it's not inherently distinctive  wouldn't blow right by this point if i were you in saying that it may very well be the case because then you are stuck with the problem of judicial notice with judge dykes question i think is is  going to the the problem of how far the opposers burden of introducing prime evidence goes if the opposer satisfies its berger either by introduction of affirmative evidence or by admissible judicial notice of showing that habits are common and that then imposes on you the burden of showing that your particular habits are very different from the the habit in general and commonly known habits that it seems to me you have a problem you know certain on that respectfully i disagree and the reason that i disagree is that there was witness testimony by several witnesses who said that they had never seen another had anything like the but five or six lines eight through eleven  the question was not posed in the form of does the stand out in a crowd no but it does when the question of is there anything else out there in the field that's like this but else if you got good and another witness testimony it's this minute it's just there was another well then there is it's the same question and answer colloquy the p h it was seven lines eleven to fourteen i think i'm a little  confused bethought that earlier you said the burden of wrongly placed on me and therefore i'm entitled to a reversal but now you seem to be saying well if any burden was placed t that was not an issue that that we raised on on appeal your honor that the point was that if we stand here before the trial court and the evidence is awesome that it before we context of the question i would respectfully state that you skipped the step of ensuring that these habits or whatever was taken judicial notice of were are sufficiently similar or or our habit stood out from a crowd from that once that decision was made yes the burden which well that's let me make sure that i've got your position because this it goes back to judge strikes original showing that in fact your particular have is different from all the other hat and do you have any legal authority for the proposition that that is either right or wrong as a matter of the way we should be analyzing the question of shifting of birth my understanding from this court's own precedent in the yamaha case as it explained it to the board there was that at this stage in other words prime here where we are at the conclusion of trial after the trial testimony period and really we're talking about the ultimate burden of going forward that it's so it's the ultimate burden as this court explained in yama i don't understand what what the deficiency is if i understand what you're saying is you're saying because the court used its own substitute for evidence in the form of judicial notice from that we have to conclude that the judicial notice is taken and the very function of judicial notice taking is to substitute for submission of evidence then the fact that the board came notice supplants the need for evidence well and perhaps that this is a fine point you're on a boat what that is doing is it's conflating the fact that the evidence comes in with the fact that the evidence carries the burden another it's not just that the evidence is admissible and being considered by the court but now we're also and because the court is living it it would be hard to understand why it would not judicial notice even if proper was deficient and constant that's very different from saying you were victimized by an improper imposition on afternoon your honor with respect to the question of whether the case should be reversed so that the trademark crown of the pill board can review the question of judicial notice i would point out the rule to a one foundation point of that is the should have complained immediately upon seeing the board's decision but he did yes and he could have sought rehearing in that according to this rule if that was the basis for the decision they should have granted that rehe with him what his actions were many years ago when the when the habit was first being adopted and conceived through him and what he taught to the people who were ultimately permitted to wear the ha these are the types of things that come in with respect to father claudia's i submit to the extent that first of all i don't think they ever came in to the board's decision on the question of inherent distinctive to the extent that they were considered they were not considered for the truth of the matter but only for the teachings of what father claudius taught when these people went to brazil to receive their training and what they took away from counsel argues that you don't need to worry because even if he gets trademark registration your use of the habit in various ways in the nature of religious ceremonies won't you if he has a registration i believe will both prevent you from doing what you think you should be allowed to do part of the evidence before the board that is respected in the board mary queen the heralds of the gospel have appeared on nationwide television for example in musical on samples celebrating their religious commitment and their religious ideals benefits it seems to me that these are very public certainly broadcast nationwide and could be subject to an injunction i would not serve i would not want to trust it to it if the court judge to make a ruling on this issue because we have had this proceeding in which we oppose the registration and indeed the registration was granted over our opposition i think we would be very susceptible to an injunction and certainly to a great deal the distinction here is between a private religious ceremony and a public performance of religious music you're saying you agree with him and that in the forwards or didn't you have nothing to fear but in the latter circumstance you think you if the heralds are once again performing religious music on television if he gets the registration he might run to the district court and try to get maybe actually get an injunction to preclude that television performance that is my fear what there is a great deal of history here and it runs through a number of countries and it's certainly not relevant to this board except to note that there are deep felt emotions with respect to this particular trademark or garment or habit i don't really think it's a trademark but that's you know i misspoke when i said that and i think that whenever a legal edge is given such as the right to register there is a danger that that right will be used and possibly abused and i think we would definitely be hurt in the event that the mark is registered because mary queen ever taken the position that the foundation can use the have no publicly let me make sure i understand the burden of proof issues here and i understand correctly where the issue is one of inherent distinctive the ultimate bird you saw on the a poster set correct as opposed to acquire distinctiveness no i don't think the ultimate burden is on the opposer i think the burden of coming forward with a prime official case is on the opposer i think that if the if under the overall analysis the mark does not have inherent distinctiveness it should not be registered and i think it's the always the ultimate burden of the applicant to prove the requirements for register ability not the record the mistake made by the trademark examiner and the board has made that correction with respect to their position i believe based on the questions i heard posed to mr weinstein's that the issue was well understood were not saying that the federal rules apply in all instances i do understand that the regulation promulgated section one point one zero two j two of deposition covering a myriad of things as to the specific question of inherent distinctiveness i don't think there's anything there however if the case should be reminded i would absolutely want fathers meters testimony to present to the board in any rehearing before the board opposing counsel argued that there was no basis on which the board could have made any kind of comparison with regard to distinctiveness between the habit at the issue and other habits of the generally similar sort of my recollection is that there were all kind of diagrams or photographs of a variety of habits and mr weinstein if i understood him said no that's not right there were a couple of pictures of people when we talk of photographs we are referring to the specimens that the foundation submitted to show its use of the habit in order to support registration those photographs are black and white for copies  rather difficult to see and there is there are a couple that show the habit being used by for example a priest following a couple of members of the wearing his habit and i believe there are others also but i don't think you're fearful in this for me who would work what were their comparative abbots before the board or not yes or no no no there were not at the you agree with him that there were no comparative habits before the board yet yes i do agree how do we what do we look to to determine that this particular happened setting aside the fact that there are the legal problem let me let me try to help sure that are bring this point down to it a fun point it struck me that the board's opinion was in some areas have a kind of breezy aspect for example they say the habit at issue does not strike us as so unique unusual or unexpected that one may assume without proof that it will automatically be perceived by others as a trademark or service that striking us what's the evidence to that effect well the board was going by a couple of things one of them in this court's opinion in tone brothers  see three pieces of evidence in this case that say that this particular habit is not distinctive compared to all other hats how do i know that's true i think judicial notice you didn't notice will tell me that their habits out there what judicial notice judicial notice tell me about this particular hat it tells you that this particular habit is like others in that it has a cross in that it's wearers of a rosary around the ways as we look at this habit that's all there distrusts design which looks perhaps not like an ordinary any ordinary cross that that cross design is not distinctive i think there is an analogy that can be you consider football you know they're all different they're distinctive you see so you can tell whether it's a washington redskins or a minnesota viking and yet is any one of them does it strike the observer as representing a source of a good or a service no it's a football jersey it's worn by a football player and the same is the make i referred to some n f l teams where we do have acquired distinctiveness but if someone walks in this room wearing a football jersey even if it's highly distinctive it's still a football jersey and if it isn't an n f l team if it's a high school team from alaska you're not going to know it it's all you know it's a very nice very looking very bright football jersey and that's what we have with respect to the habit but where you had something in front of you between the principals here or the council for the principals about resolving the potential threats or unhappiness or antagonism or whatever the right word m between these parties there have been efforts made on various occasions i think both parties probably negotiate in good faith but we were unable to those efforts include during regarding the opportunity as might not adversary would put it for me to be heard regarding the issue of taking judicial notice the problem is with regard to this particular honor and that's precisely what we did but the point was that the rule also contemplates that when judicial notice is about to be taken that the tribunal will announce that that's going to happen so that we can have a chance to express what it is that you dish will notice being taken up and we had no opportunity to do that nor could we have your honor because the way that the board conducts its proceedings their testimony period which perhaps the board could have reopened for us but at that point was closed and without such  a an unusual thing happening we would not have that opportunity