to change the expert opinion of the t t a b this is their field the ones that decide these facts why would we disturb their deciding cases when it comes to octave from then air or somewhere else i have no idea a whole new rule as to how these trademarks are clients trademarks some of which have been around for ninety years should be printed large stones hardly registered that setting aside the pronunciation issue which you're welcome to return to but didn't the board as i read it really focus on the similarity as a whole and they pointed out that the stone is different ends of the two marks that they are in appearance very different even if you pronounce it stone shield stead  the hancock versus american steel in wire cycling versus tornado completely different spellings completely different appearance identical connotation opposition  same goods same as we have your goods but in the hundred good men a factual question for the board to decide about whether they have the same connotation or not and here the board decided that they don't have the same climate but the board aired the board started out i'm not makes of my mind but i think you're a very strong argument on the content station but even putting that aside the board looked the other factors and said these are not these don't have the same connotation they don't look the same they don't have the same commercial it might be a completely different story but it's not worth a block of substantial evidence that armor stone and stone philip don't have the same common connotation or lack of substantial evidence abberton was to show that there was substantial evidence and excess weight if you will to the appearance and sound and ignoring the monetary to make sure i think i understand what you're arguing for the pronunciation point so in fact the board's analysis that if there is error there there's error and it has to be said and killed yes there are and there were so far off base and where did they get this rule where did it come from i don't think they're giving us or rule they're giving us a factual finding and i think it's points out there are entitled to make those facts for findings unless they have somehow grossly misconstrued the record and i'm out here where's that and i think that's exactly what they did you can your honor i think you can find the faces in the record for that the rule that the board promulgated here that m and start with s t v should be pronounced with a short as a matter of fact the dictionary says exactly the opposite webster's new police it says where the letter of use in a word the preferable way to pronounce it is as along up nearly all the board had no evidentiary basis there was no evidence for this new rule that's where the board error and that's where this court needs to step in and say  lord you're way off line here this is this company's trademark to use for ninety years the mark stone our goal celebrated his ninetieth anniversary of registration next month the other marks a billion use for thirty or forty years it's a company does a tremendous amount of business under those markets in this country it is absurd to think that this company doesn't know how to pronounce its own marks and the reason there is plenty of testimonials from our marks or pronounced specialty coatings conceded that from nancy ation was correct the pronunciation wasn't an issue until the board came up with this crazy rule and now our client is stuck with this decision which granted it's not a presidential decision but it has is a published decision it's available against a third party or opposes a third party war that's just plain wrong or had no business doing it you cannot find any evidence not a single shred of evidence in the record that supports that finding connected to do you do business outside this country you're not and our client yes sir in england too yes so all over the world and how is it pronounced in england i'm thinking of it is pronounced stone in our company to trade name stone hard stone shields flat we have a whole collection of those markers and i am i right  three fifty eight i guess this is mr jewel testifying is that the extent of your evidence about how the consumer class the purchasing class not how you pronounce it in smart what does it do it goes out and teaches people how they are to be pronounced that's what the stone poor is done over the years and it's been very very successful can you can you remind me what what it what is your evidence about how other companies in this line of work have named their their products how other companies have named their products we had not we did not present evidence about how other companies and their products we stunk or names its products followed by the particular name for that particular product and that's how that's the way the company is recognized the family of march is recognized it's been very successful they do a install install million square feet of flooring a month anything descriptive here with respect to in use as a stone both stone covering for a floor i'm sorry your honor as with respect to the use of the term stone when referring have gained a little credibility with me if you would have said yes but we have secondary meaning well we do have secondary meaning would have been the right way i think to address them when it's a stone appearing floor i think to use the term stone is to be descriptive well and the on guys who have a second during the more over the mark is incontestable it's been in use and registered for when twenty five years thirty i forget i know i registered it i believe we recently renewed it so it is well you've got the same trade channels you've got the same type of consumers the same consumer core there's an awful lot that's auguring in favor of protection here how do you get by that and add to that now if you pronounce them identically does that give you a problem i don't know their stone marks and you've got these other things in favor record evidence for pronunciation is there anything in the record going the other way there is nothing in the record going the other way we did was it was an issue of the the board came to the conclusion  there's a very small number of questions and answers put to mr jewel and i die to my senses it's not perfectly clear what he is saying but that in context the gist of it is everybody dealing with our brand on the on our side and on our customers is pronouncing it this way it's not agree that it's not explicit but in the absence of something going the other way i mean common sense has got to suggest that if you were to look at the marks and find that overturn the factual determination board that it's pronounced a time when it's pronounced stone i think that the board made a number of other different words are says this is the stone core group in its naming of its various products always put the s t o m first or does it sometimes put it at the back and up something as part  aren't and so i see them part of your argument and this is i guess something the board said in part that the flipping of the order makes it less likely that there would be confusion because the consuming market knows that when it's coming from the stone core corp actual or the stone always comes first so how close did the board get to saying that i don't know how close they came to  they'd certainly look at the marks and found that it was a meaningful distinction where the s t l land was placed within the market itself and that was a factual determination and as were all the determinations that the board mad i asked your friend on the other side and forgive me for not remembering what's what's in the record i thought there was some evidence in the record of names of products in this product space from other companies used for did the board rely on that evidence as part of its likelihood of confusion i guess a to conclude absence because i was i mean i was thinking that if there are a lot of some similar someone descriptive names of products you kind of want your name of your product to signal something about the content of it and if there are lots of them then then when the consumer sees two that are different they're not they are holding everything else aside somewhat less likely to think well they're somewhat similar and therefore they must come from the same source you're saying if there's if there's if there are a lot of them in their armor and shield and i don't know they're probably twenty other words that convey protection and other words twenty names that convey  hardness and somewhat similar to stone and if if there are fifty products out there with names that get close to each other then the fact that two may be somewhat similar is less brief is usually more political text part of proceedings and goes to the strength or weakness here is they've tried to free prevent the third party years almost has  think the board got pronunciation issue wrong it seems like they relied very heavily on not to come up with their ruling and your friend is very worried that that's going to have some kind of affected other proceedings why shouldn't we send them back because it's so in fact the board's decision to look at it again in terms of get putting aside the pronunciation rule because the other stuff about placement syllables i'll think pretty minor compared to the pronunciation rule i tend to of was was also another part i don't believe they actually made any kind of indication of how much weight they were giving to any kind of factual determination with regard to similarity and without looking looking at the marks themselves if your second part how will harm me if they it's certainly one body that  looked at their marks and found that they were pronounces as to when and if they had really if that had been something those meaningful to them then they were treated to a consumer surveys or present some kind of affidavit evidence from perspective consumers on how the mark was actually presented all they really have is the speculative testimony of their own employees of how  be i've always somewhat addressed the fixed factor which they raise with respect to third party use the opposition that was considered neutral right there for us was considered neutral that's that's correct they looked at the the i think there's some confusion on how the board viewed the third party marks with respect to their party and the board the way the board determines the arguments presented by those in council or that there were opposing counsels filing of numerous oppositions meant that there were a small number of other similar or substantially the same types of marks being used in commerce and the boards at that point found that the filing of the opposition some cells was not enough to base a conclusion that there was only a small number of marks that were actually being used in commerce with the s p l and designation and that was supported by substantial evidence because there was no it's evident other than the opposition so filed by my opposing counsel died that there were other types of marks does the record indicate that the whether in those oppositions were successful or not   with respect to the really descriptive sort of stone shield are so hard it would be our position that armor stone is more suggestive of all these such as product that's awful tough to get around isn't it not stone in your stone appearing product and you call it a stone and it's not descriptive it's number we're trying to make sure that anybody who uses a similar product can use words in the public domain to describe their product as well wouldn't they want to say we've got describe thank you when we scored your five minutes rebuttal if you need to use it the record is devoid of any evidence regarding uses of similar marks for similar good you'll find that it page fourteen eleven in the appendix that is flat out wrong and said no evidence our seven pages of references to forty pages of exhibits those exhibits appeared eight to fourteen through eight to sixty five and show nineteen it's nineteen using the mark armor stone in connection with construction concrete or a proxy product for specially coatings to say that there was no other use or no evidence on thank you i also want to point out that on the one of the thirty pointing out i see where you pointed to think you're right there's a lot of you said to somebody other than that how does that increase the likelihood of competing between your mark and armor sure doesn't that just create a likelihood of completion between armor and other armor so marks not know your honor it's of what it is it goes directly to dupont factor six all if there is confusion about are marked with their mark and they're using those marks we'll deal with them when we finish with this proceeding secondly the significance of du pont factor six is to show with respect to the challenge marketing the specialty postings more really isn't very distinctive because all these other folks out there using the same markland similar goods so that's a factor that should be  of armor stone either with a you or with not a you but not evidence of third party use of other names correct that are sort of in the general space of stone shield and armor lay down no it does not look like stone it is a smooth or didn't place flooring that is colored however whe according to whatever pigments are put into it but it certainly doesn't look like a stone floor they need to exclude floored if you when you walk into any airport in this country and you walk on that smooth