take your time to set up our last case this morning is number eighteen dash fourteen thousand and ninety two royal palm properties l l c versus pink paul properties l l c your hauser whenever you're ready i name is robert hauser from west palm beach i represent properties we're here asking the court to review a judgment as a matter of law as i sometimes say judgment sometimes in the appellate world we we don't think about what that really means but it means that this panel is sitting in judge middlebrooks his position when he's considering that motion and the question is with this panel independently on its own have granted that judgment as a matter of law i submit the answer is no and the reason is when through a three day jury trial we had a properly instructed jury nobody's complaining about the instructions  you just a quick question there i think there's a lot of ground to cover here and i waste your time sort of with procedural wrap up on what basis did you get the trademark was it inherent distinctive or acquired distinctiveness didn't you get the trademark under section two f which applies to we say why are the application back in two thousand and twelve which was based on  suggestiveness but with a back up affidavit that said also we have acquired a stink and when they granted the mark they said what i'm not sure have to check that so i did that the reason it the reason i wonder is that there's all this talk in the briefing about the presumption of you know sort of validity but it seems to me that that probably only attaches to the ground on which you saw it and obtained the mark and at least i think my own reading of the record i could be wrong about this but my own reading in the record i think is that you actually acquired the mark under the section of the code that applies to acquire distinctiveness so my guess is that you get the presumption with respect to that but with respect to all of our discussion of inherent distinctiveness i actually wonder if you have the burden now you're covered here of course by the the j m l sort of overlay in the sense that you know we have to consider all of this stuff in the light most favorable to you in the jury verdict but i do wonder about the burden that self in the presumption of how and i don't know the answer to that question other than to say this is their counter claim against us so even if we had some legal burden in a counterclaim situation the question is did they put on evidence that shows that our claim is unquestionably beyond any doubt for purposes of j m a well geographic number one and not only geographic but tied to the subdivision clearly in the eyes of the relevant consuming public so there's a there's a whole bunch of moving targets here and judge middlebrooks essentially assumed number one the relevant consuming public is only the residents of the subdivision he then seized on evidence that that market has been saturated by my client it's actually supports acquired to stick to venice as judge knew some points out and then he said no you're geographic and you only refer to the subdivision and that's what all the people here think and therefore you lose as a matter of law and with all due respect to judge middlebrooks the jury could have quite reasonably found a number of different things that undermine those conclusions all based on the record you think your stronger argument is acquired or inherent and i don't know i don't think we even have to get to acquire distinctiveness because i know that we win on geographic descriptive miss we have to wait on that because judge middlebrooks himself after sitting through this trial told us in his written order i think it's on page twelve of his ruling that that the phrase royal palm either refers to the subdivision or quite possibly to the town beach which for those of us who don't know is this apology about ten miles west of west palm beach and it would be known to anybody in palm beach county so judge middlebrooks himself is misreading the linum act he thought that if the phrase wilpon was geographic in any sense then we lose and that's not exactly correct under new bridge judge middlebrooks to rule against us would have had to correctly find and he did not correctly find number one that it's geographic unquestionably means the subdivision and means the subdivision in the minds of the relevant consuming public and nobody really knows here what the jury thought was the relevant consuming public just middlebrooks erroneous lee assume that it had to be just the subdivision and surrounding residence but that's not necessarily true although there is a lot of evidence suggesting that right i mean you know the subdivisions homeowners association uses that the country club website uses that the local media uses that your guy was impeached mercilessly for using that and i don't dispute that but here's here's why my next point is so critical there is an entire classification of people in the united states who are in  market for very elite winter homes in south florida in particular this potentially this this is the nicest subdivision in boca raton which is not exactly a disgusting place so the market for this kind of home is nationwide and if it weren't for the new bridge case i'd say worldwide there is a worldwide market for this kind of home on the other hand there was as far as i can tell and i haven't gone into the entire record but there seem to be a fair amount of testimony from sellers in the seller's market place about what royal paul meant and was understood to mean but nothing really on the customer consumer buyer side right from anybody well when it's when sellers i think you're talking about brokers yes yes i my client from time to time was was sloppy and referred to the subdivision you know but not just your client there was testimony about how other people used so on occasion remain ology but there was no i guess my question to confirm is there was no testimony from either side about the consumer reaction to royal paul exactly nobody introduced a survey nobody introduced the testimony of a prospective buyer as to what he or she or they thought those terms meant or conveyed or anything like that all true like on that right yes or all true and my point is it's their counter claim i'm not complaining about what happened to our complaint it's their defense which is morphed into a counter claim they're trying to invalidate my clients can trademark it's their burden to come in and say everybody thinks that royal palm meets the subdivision they needed to prove that we didn't need to disprove it and we that's why we didn't serve anybody but they didn't serve anybody so there's this huge gap where the jury was invited to use their common sense and your testimony or your testimony part of your argument is that at the very least with regard to some of the issues your experts testimony gave the jury enough of a ground to stand on yes or there's no question about that but even let's give judge middlebrooks the benefit of the doubt that he completely disregards my expert opinion without a doubt hearing let's even if he does that any reasonable jury could have learned that there are other uses for the phrase palm that are botanical or they're symbolic or they refer to the town of royal palm beach and any jury could just find that it was their testimony also about one similar community in hawaii there's there's a couple of communities around the country the one that's trademarked is in texas gets our expert identified the one in high hawaii there's a trademark one in texas and but even as to that community and we're kind of getting into the question of possibility of confusion but there's no evidence from anywhere that that community or any other community is in continuous insubstantial involvement in the same business that we're we're in the business of brokering really high end houses in a really exclusive subdivision there is no testimony from the other side with the burden of proof that these other entities and they you know they they came up with printouts of dozens and dozens and dozens of other entities that have the phrase well palm in them there's no evidence that any of those entities with all due respect to them are in our line of business continuously or substantially or even that they're actually operating because anybody can open an entity on the secretary of state it doesn't mean that then i ask you a question about the architecture of the statute just make sure i've got a clear in my own hand so as i read the district court's order the district court seems to to to include the confusingly similar question like as a subset of inherent distinctiveness do you agree that that if that if a mark is confusingly similar that's a stand alone basis for invalidation it's that sets apart yes ok governor just to make sure i've got it straight he meant or i think he meant to he meant to get us on geographic this he meant to get us on secondary meaning and then he meant to rule against us on acquired excuse me on confusingly similar and i haven't had a chance to talk much about that but the other side doesn't even have standing to argue about that because they don't own the marks that are allegedly the basis for that and that's a constitutional case or controversy the fact in the whole argument judge middlebrooks never should have gotten into that quote attributed to the wrong person for which i apologize the correct quote is from plaintiff's expert cross examination when he came back as a rebuttal expert and this appears in volume five appendix page nine hundred and thirty five starting at line five the consuming public is the people who want to buy or sell in royal palm correct answer yes sir and you give me the the correct record site for that  in in response to the question who are the consuming public its buyers and sellers not just buyers and rd their expert use the term royal palm like everybody else choose royal palm to refer to the community but as having read the parties warring descriptions of the testimony of trial from a just a common sense perspective those a royal palm connote much more than just this community it connotes a type of palm tree for example that's correct hurt us any more than apple refers to a piece of fruit and a computer it can or cannot be a trademark it's not required and as far as the town is concerned there apple is there are couple obviously a very different one because as arbitrary but the fact that it may or may not be a piece of fruit is is not the test the fact that it may or may not be a tree is not the test the test is what does it mean to the relevant consuming public there was no testimony from any consumers correct or anybody correct then you have got a problem for your side of the case given that you had the burden on invalidity i don't believe so for several reasons number one the consuming public the buyers and sellers included the existing residents and it was their homeowner's association that used the term it was their country club that used the term royal palm it was the people who wrote articles in local newspapers who used the term royal palm in discussing this community that what a survey had been better yes but as a survey required in the law no if i may go to your honor to your question about acquired distinctiveness and two f section two of the statute if i could ask you to look at  based on acquired distinctive ok so that's what i thought so so i think what that means is that with respect to acquire distinctiveness he gets the presumption you on doubt and they have the burden and the burden here not only to sort of like not only a preponderance burden but a burden here given the way the j j m l went down to to demonstrate that no reasonable jury could have concluded otherwise right correct and with respect i think to inherent distinctiveness that means may mean that he's got the burden or secondary meaning distinctiveness you've got this issue about you know could the phrase have have meant something beyond the subdivision if you had to but with respect to acquire distinctiveness if you had the burden and you're trying to overcome the j m l standard judge jordan's question sort of rears its head again why did you put on any evidence to carry that burden that that that that the mark had not acquired secondary meaning is it anybody say you know did any of your witnesses say that's what i think it means just that's not required and the reason is acquired distinctiveness is based on a substantial continuous exclusive use and the record overwhelmingly demonstrated it was not substantial continuous and exclusive use was a substantial yes was continuous yes was it exclusive no for several reasons st there was the company in hawaii which they knew about ten years earlier when they filed suit against someone else and judge calm told them you don't have this yet you don't have a quite distinct in this you don't have secondary meaning and here's this couple and here's one in georgia and their own expert found one in louisiana we found more in texas the trademark office on their  nd trademark application found several in texas we found on computer ai searches that their own expert approved of the concept of online searches which he used not in this case but he has used we found dozens in a properties that predated the plaintiff do we did but does your research indicate whether those entities are actually operating entities i mean another registered the sun does listing your honor identifies that they have been filing their annual reports that's as far as we  went i believe there was a misconception as to what you think it works and i think there was no evidence or no evidence or insufficient evidence on exclusive use and that allowed you to overcome the presumption on acquired distinctiveness that they got through their trademark grant yes there was an ok now now help me there was no testimony on their side on exclusiv there was some but it was insufficient and it was just the sort of scintilla that allowed the judge to grant a judgment as a matter of law i do not remember anyone saying it was exclusive on either side i don't remember anyone saying quote non exclusive although on behalf of the defendant we did put in a tremendous amount of evidence that it was not exclusive now here's where i believe  a a miscomprehension as the distinction between royal palm as a place and royal palm properties as a trademark has crept in unintentionally and i think it's an unintentional he says in some the evidence as to secondary meaning was insufficient to support a jury finding that the primary significance of the term quote while palm properties close quote is plaintive services so far that's the correct standard then he goes on to say rather than real estate properties in the community meaning the royal palm got country club or in royal palm beach in other words  distinguishing the term palm properties from two different communities the royal palm and country club which he calls the community and royal palm beach which is the location and this is consistent with the law and it has been i believe unintentionally misinterpreted as meaning well it could be royal palm beach and royal palm properties that means one in the same thing that's not what it says the case law does not require a single geographic location for something to be primarily geographic i actually did my homework judge right there's a fayetteville in arkansas and one in north carolina fayetteville is still a geographic  of birmingham michigan birmingham alabama judge jordan miami florida miami ohio miami california hollywood florida hollywood california the law does not require a single unitary place in order a term to be primarily geographic the last thing i would like to address if i may can trademark i'm sorry my all mater for not doing these well in  football terms these days but has a registered trademark for the university of miami s are right that is partly geographically descriptive right yes miami university in ohio has i presume a trademark for miami university that is partly geographically descriptive yes so then the notion that heart of a name for lack of a better term is geographic doesn't preclude trademark protection right it does not preclude it so tell me why the existence of other royal paul is here even if they are deemed to be geographic causes a problem for your opponent in this case given the jury verdict because in this case the testimony from plaintiff's on cross examination from plaintiff's witnesses and from on challenge documents all said that royal palm was and once the jury heard that there was not a scintilla of evidence to support a validity finding that if i may so everyone is going to testify that royal palm is geographic geographic because of where their community was based even though it is the community based in the in the town of royal palm no sir the community so it's geographic because it describes the place where the community is it could have been called red and your argument would be the same wrecked the community of red and that red would have been geographic that doesn't make much sense to me royal palm sounds better because it feels like a place but if you call a community red blue yellow that can't be this is from the gut i may be i may be wrong that can't be geographic right lee describes something that's geographic doesn't mean that the appellation is geographic it may have started off non geographic but by the and let you finish those the geographic moniker create a problem only when the juror geographic limitation is in one area in other words if you have something that fayetteville arkansas and fayetteville word you say the other favorite was carolina ok north carolina does that preclude any of those fayetteville communities or business in those communities from trademarking something called fayetteville wooden lumber company hands on where they are located and what their doors carolina and they do wooden lumber if they're not in that geographic area of failure are in that you have graphic area and if the consuming public the buyers of the lumber if the consuming public associates the name with the community and not with a company the company loses the miami herald the newspaper in this town this trademark it could be it means could be  trial record and like your record everybody testifies of the miami herald is identified with the city of miami in florida not miami ohio there's a miami herald good trademark protection if they associate it as a government newspaper no it's not a government newspapers sociate it as being the newspaper in miami yes it's protectable what's the difference here with royal palm because here the people associated not with the plaintiff but with a community that's a different argument that's the distinction that's the that's the argument i've been making from day one royal palm is the community not the plaintiff so then it's but then then you say that it's invalid for a different reason not because it's geographic in scope but you know it's primarily geographic and then there's no acquire distinct in this or secondary meaning the public is not associating it with the plaintiff that's the distinction ok i think i understand ok thank you very much we really appreciate if i might have just a few extra seconds to to answer the question about standing sure you can have eleven minute go has the right to challenge a registration the person who thinks they will be injured does not have to be st they do not have to have their own registration that is what the statute said so in the sense of constitutional standing his or controversy standing that's covered by statute defendant doesn't want to be sued again defendant has standing to challenge the other half of that is when the plaintiff in this case tried to get a nd trademark the trademark office said no your confusion only similar to these other royal palm trademarks challenge a likelihood of confusion between well palm properties and these other two earlier marks that's independent of geographic independent of secondary meaning independent of acquired distinct when i sat down i remembered the jury instructions the parties agreed in their joint jury instructions that the defendant had the burden of proof on everything so i really appreciate judge new  son's question about who had the burden of proof but these parties agreed that the other side had the burden of proof and so that's one of the reasons i was thrown they agreed in the jury instructions they have the burden of proof for everything the geographic issue they agree they have the burden of proof in the jury instructions on a choir distinctiveness and finally on the attempt to challenge confusingly similar standing in the shoes of the texas royal palm sanity's so that's an easy answer to a very hard question let me ask you in my mind i think the most important rehabilitation you have to do and i think it runs both to suggestiveness that is under the umbrella of inherent distinctiveness suggestiveness beyond geographic descriptive notice and also to secondary meaning require distinctiveness he says you put on no evidence there is no evidence in the record from which a jury could conclude a reasonable jury could conclude that royal palm means something other than more than the subdivision our expert testified that it means a tree and he testified to the existence of other entities that begin with the phrase royal palm that have nothing to do with this subdivision and it's sort of common sense if they put on evidence that there are dozens of entities out there that say royal palm and nobody is suggesting with a straight face that they mean this community of ten million dollars houses and bulk up they don't so the relevant consuming public i have no idea what that group of people is i think the jury believed at the relevant consuming public is a lot of people all over the country and potentially the world who hear the phrase royal palm and do they immediately know that we're talking about a little subdivision in boca raton florida and the jury can conclude no they don't mean that and much more information would be needed to ultimately talk i my client's business to roll palm property so that's that's the issue that the district judge shouldn't have touched if the jury thought quite plausibly that the relevant consuming public is big and it's not just people in the neighborhood who use slang to refer to their own neighborhood as well palm to save words if it's anybody out there who might buy a summer home in south florida at the very elite level like one hundred and two thousand and thirty one million dollars house those people do not know what royal palm is until they subsequently learn and so if anybody had done a survey of the relevant consuming public and done here they would have learned that the relevant consuming public does not know that rule means the subdivision they just don't and so our experts testimony at least on that point was the of evidence that the jury could have grasped on but i personally think they relied on common sense they know what the words were all pa means i think this court knows what the world will pop means and i'd be willing to wager that most people in this courtroom did not know that royal palm is a community in boca raton until i opened my mouth it's just that simple and then we have the fact that royal palm is also a community in west palm beach that we all do know about so the jurors and the judge and everybody else in palm beach county knew there is a town of royal palm beach and the phrase royal palm is probably evoking the town of royal palm beach in many many many many cont including real estate real estate management or anything else having to do with property could be a title company for all we know and that raises another point that he brought up i think he's trying to attack the initial registration by claiming that there were other royal palm property type entities but he doesn't know the line of business there and he doesn't know if they were continuously in operation and he's relying on hearsay so even if it comes in notwithstanding my hearsay argument it doesn't have the weight nobody knows what these entities are actually doing and it would be error to presumptively rely conclusively on something that somebody is filing with the secretary of state every year even if it did contain which it doesn't a description of the line of business so i and i don't have time to get into the constitutional standing argument i do invite the court to read the cases not just coach house but the related cases on standing and in case after case after case when we we see somebody defending a trademark infringement claim and they try to rely on a rd party's prior registration they're getting kicked out of court because they have standing under the latin doctrine joost hershey so i don't have time to go through each of those cases but i do invite the court to look at that they don't have standing to complain in the shoes of the recess until tomorrow morning