these three words provide the panel with enough information to understand exactly what the appellant's business is all about or might the honors require just a little more factual i would agree with you and i think that you know in that regard perhaps the finding that the earth is descriptive rather than suggestive would would have some merit however i think if you look at that the actual confusion that's in the record remember these are both cannabis companies so the record the evidence in the record shows that there is actual confusion of people who bought the adelies product and then showed up to a trade show and said my client says that the two parties are if working in sort of related area related goods and services right so certainly there's at least that issue here and i don't think we can honestly look at the record in derive a fact question and when we start you know dancing further and further away from just selling don't know right it is the coffee is the pastries is it sandwiches is it a vegan restaurant right at what point is that line drawn and i think as long as you're going beyond that core service in some way it's a fact issue and as everybody knows you know typically you know those but they handle these cases you know the likelihood of confusion analysis because i'm now offering a class or a lecture on the benefits of yeah absolutely if you've got a if you've got a weekly zoom lesson on how to cook donuts i think the donut shop that's why i think it is i do think this case is a little unusual just because marijuana is illegal under federal law you may or may not think that affects any of the issue isn't part of us but if i remember the denial of your mark registration wasn't part predicated on math where is there more collateral are and still are in other words they are exactly selling something that is illegal under federal law so maybe that allows their product to get registered b d and other ingredients and it but he's really focused on this sort of plant based health you know and that you dress a lot of that when he gave the keynote at the national restaurant association conference last year a couple of years ago and so i think the problem is that at the district for i think that the court failed to recognize that you know there are things that he's doing outside of just the cooking with herbs and so to answer your question as to why i think maybe the defendant the district when you're down to one minute if you want to say rebuttal time yeah if i could say the last minute that would be great judge you may view that thank you and we'll hear from of the donut shop and as a fan of homer simpson i appreciate that example there's actually been a registration that was denied for the herbal stuff because in that that shows you because this market that's what herbal does it describes the workshop it describes here the words in this case falls within that continuum of generic arbitrary there's there's no denying that that this mark these two words herbal and presumption of validity because you're selling something pretty radically different yes but i think so but i'd also like to address that issue because if you answer that question which is in a lot of nice circuit law about well i don't think there is any evidence and and perhaps that comes down to an authentic case in question we asked for sales data in this case the judge noted that in his order it was refused to give it to us we wanted to know that data i believe that there's we have seen through the trademark filing in this case and it may be something that actually damage or pulled down from the web page that there were some high end users not nothing my m many are unrelated and so they sell of a lot of items they do have this one item which is a cutter and fuse or something some people call it a broader infuser so you can put any types of herbs in that in that broader including  thousand dollars they're not branded as the herbal chef i don't know if they've ever sold any and part of this question of authentic ation is we don't know when those went for sale we think they went for sale well after we were already selling our products in the marketplace and just to let the court know the timeline here this is actually a case for where my client filed the st intent to use trademark application back to twenty four and then after that i think there was one other state perhaps in december of two thousand and fifteen and then all were after our five there's no evidence that they were ever selling any of those goods until twenty at least that they had offered for sale something but the record is completely devoid of any evidence about what those sales were and i think that's probably on purpose i don't think they wanted to we don't know if they sold any of those goods we just know that they've offered some infuser and there's registers i think they could i mean the trademark office has been and before this hearing i looked at they've they've been really consistent with this people have tried to register the herbal doctor it's been it's been denied the herbal vet denied is merely descriptive is merely descriptive and that's for this reason and i'm sure the herbal doctor or the herbal or the herbal vet would also told the values in the virtues of herbs or in the idea of a vet or for your dog or if your cat just like the doctor would go on t v the doctor might even have a t v show that talks about how great herbs are for your body but that's not going to take it out descriptive which is why the trademark office has consistently consistently denied these types of marks even with the word herbal because it is completely descriptive of what the appellant is trying to do what these these other individuals trying to do your honor i do not think that there's there's any imagination here and so this argument that the experience if you see what the trademark examiner did from southern louisiana cooking or at least that's what i understand that's what they promote and that's just the natural thing that anybody's going to do just like that herbal doctor would do rejection for being merely descriptive it would be maintained and because of that the only reason that office action was not in final was because this case had been filed and in that same office action they said based upon this case being filed this action would be suspended now would have had the opportunity to prove that there was secondary meaning but there was no evidence of that i think in the reply brief they noted that they're not trying to argue that their secondary meaning in this case and so the court doesn't need to go beyond the issue of being descriptive or being or whether it's whether or not the secondary meaning be a stickler for details such as that except for the fact that we were provided no information as to when those products or any of those documents were made available and course very important for the purposes of secondary meaning because you have to show secondary meaning prior to the st infringing use and because our st infringing use was in january of of two thousand and sixteen the dates of those documents if they're trying to prove fame became very important for my client and so that we could rebut them look at them examine them we didn't have those i think the final point i would make is that the point earlier was that that was made early in the case and i don't think this was argued as much on appeal was whether or not the fact that it was marijuana made it cannabis is an error the trademark office i think that's uncontested in the record here that that it is an herb the trademark office has previously said that cannabis is an herb actually in a case in re morgan which is serial number eight eight where they looked at another mark which was herbal access and there became an issue about whether or not herbal captured marijuana and the trademark office said absolutely it did so i have two minutes left i i really want to answer any questions or might have about any of the arguments or any of the questions about the sales i do want to emphasize there is absolutely how to cook right this is a brand that does that so to say that they're herbal chef is descriptive just doesn't make sense because there is a mental leap if i say oh you don't say to yourself this is somebody who's putting that when determining distinctiveness you can look at highly similar marks that are on the registry as judge has pointed out this is a highly unusual case we have not only a highly similar mark we have an identical mark not somewhere on the registry but in